Delhi High Court
Exide Life Insurance Company Ltd. vs Mitun Garg on 11 April, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 11th April, 2018.
+ CS(OS) 15/2016, OA No.69/2017 & IA No.240/2016 (u/O XXXIX
R-1&2 CPC)
EXIDE LIFE INSURANCE COMPANY LTD. ..... Plaintiff
Through: Mr. Siddharth Agarwal, Mr. Adit S.
Pujari, Mr. Faraz Maqbool, Ms.
Surabhi Dhar and Mr. Rohan
Kothari, Advs.
Versus
MITUN GARG ..... Defendant
Through: In person.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff instituted this suit against the now sole defendant Mitun
Garg as well as against one Ms. Sana Khan for (i) recovery, jointly and
severally, of compensation in the sum of Rs.2,50,00,000/- for the loss
sustained by the plaintiff on account of loss of reputation caused by
defamatory statements and malicious falsehoods published by the
defendants; (ii) permanent injunction restraining the defendants from
publishing, communicating and circulating statements which are
defamatory of the plaintiff, alleging that the plaintiff aided and abetted the
alleged accused and did not take any action upon the complaints of the
defendant No.2 Sana Khan; (iii) mandatory injunction directing the
defendants to make a public apology in a newspaper with national
circulation; (iv) mandatory injunction directing the defendant No.1 Mitun
CS(OS) 15/2016 Page 1 of 18
Garg to remove all such defamatory posts, statements or pictures published
on social media; and, (v) for recovery of costs of the suit jointly and
severally from the two defendants.
2. The suit was entertained and vide ex-parte ad-interim order dated
13th January, 2016, the then defendant No.1 Mitun Garg directed to remove
the postings made by him on his Facebook profile and the defendants
restrained from, in any manner, similarly defaming the plaintiff. The said
order has continued till now.
3. The plaintiff filed replications to separate replies claimed to have
been received by the plaintiff from the two defendants, annexing thereto the
copies of the replies from the defendants received by the plaintiff.
However the said replies were not filed in the court. The defendants
No.1&2 however subsequently through advocate filed a joint "reply" to the
plaint annexing documents therewith and which is on record. On 21st
February, 2017, a new counsel for defendant No.2 sought time to file
written statement and which was allowed by the learned Joint Registrar
vide order dated 21st February, 2017.
4. The plaintiff preferred a Chamber Appeal being OA No.69/2017,
objecting to the order aforesaid of Joint Registrar permitting the defendant
No.2 to file written statement. The said Chamber Appeal came before this
Court on 17th April, 2017 when it was felt that the suit itself should not
linger any further and the counsel for the plaintiff was requested to obtain
instructions, whether subject to a decree for permanent injunction being
granted, the plaintiff was willing to give up the claim for damages and if
not, the justification of such claim. On 28th April, 2017, while the
CS(OS) 15/2016 Page 2 of 18
defendant No.1 appeared in person, the defendant No.2 appeared along with
Advocate and stated that on the complaint of the defendant No.2, a First
Information Report (FIR) had been registered against the officials of the
plaintiff and that the defendant No.2, without prejudice to her rights and
contentions was willing to make a statement that she will not publish
anything qua the plaintiff in future. The defendant No.1 appearing in
person though stated that he had not published anything but stated that he
also was willing to make such a statement. However, the counsel for the
plaintiff stated that the plaintiff was not satisfied merely with the relief of
permanent injunction and wanted to press the suit for damages. On
enquiry, whether the plaintiff in its suit for defamation is entitled to
damages as a matter of right, the counsel for the plaintiff drew attention to
para 18 of Nadirshaw Hormusji Sukhia Vs. Pirojshaw Ratanji Ratnagar
MANU/MH/0001/1913 but which did not appear to lay down any such
absolute proposition. On request of the counsel for the plaintiff, the hearing
was adjourned to 5th May, 2017. On 5th May, 2017, the counsel for the
plaintiff was heard further and orders reserved.
5. Thereafter, the plaintiff and the defendant No.2 Sana Khan filed IA
No.2160/2018 under Order XXIII Rule 3 of the Code of Civil Procedure,
1908 (CPC) and which application was allowed and the suit, insofar as
against the defendant No.2 Sana Khan, was disposed of in terms of IA
No.2160/2018 with no order as to costs. However, the counsel for the
plaintiff stated that the order which had been reserved needed to be
pronounced qua the defendant No.1 Mitun Garg, who is now the sole
defendant.
CS(OS) 15/2016 Page 3 of 18
6. Thus, the question for adjudication is, whether the present suit for
recovery of compensation for defamation should be allowed to proceed to
and be put to trial.
7. The plaintiff instituted the suit pleading:
(i) that the plaintiff is engaged in life insurance business and
enjoys tremendous goodwill and stellar reputation; the plaintiff
employs over 5,500 persons, 990 of whom are female employees; the
plaintiff is an ISO Standard 9001 : 2008 company;
(ii) that the defendant No.1 Mitun Garg was employed as
Manager-Sales Training with the plaintiff from February, 2014 till
November, 2015 at the New Delhi Branch office of the plaintiff;
(iii) that the defendant No.2 was an employee of the plaintiff last
posted at the New Delhi Branch office of the plaintiff and at the time
of institution of the suit, was under suspension for certain actions;
(iv) that the defendant No.2 was the complainant in FIR
No.131/2015 for offences under Sections 354, 509 & 34 of IPC, of
Police Station Barakhamba Road, New Delhi against three
employees of the plaintiff;
(v) that the defendant No.2 "escalated a complaint to the Human
Resource Department of the plaintiff company" sometime in April,
2015 relating to an alleged act of sexual harassment;
(vi) that the plaintiff formed a Committee to enquire into the
allegation and the defendant No.2 actively participated in the
meetings of the Committee; the Committee could not gather any
evidence of sexual advances or humiliating remarks; it was however
CS(OS) 15/2016 Page 4 of 18
established in the inquiry that the employee in question had borrowed
money from defendant No.2 which was found to be an act of
misconduct; although the money had admittedly been re-paid, the
plaintiff company still issued a warning to the concerned official;
(vii) that though the defendant No.2 was placed under another
Manager but did not appear to be satisfied and in August, 2015 raised
some concerns pertaining to work-allocation and achieving business
targets; the Reporting Manager of the defendant No.2 also
complained against the defendant No.2, of not bringing any business
and creating unhealthy situation in the office;
(viii) that on 24th September, 2015, a meeting was called to discuss
the issues being faced by defendant No.2 in relation to her work; the
defendant No.2, in her FIR, alleges that individuals present at the
meeting used abusive language against her and held her hand in order
to drag her out/push her out of the chamber in which the meeting was
taking place;
(ix) that the defendant No.2 also called the Police on 24th
September, 2015 and a complaint was lodged by the plaintiff also
against the defendant No.2 with the Police;
(x) that the plaintiff issued a Show Cause Notice dated 28th
September, 2015 to the defendant No.2 and suspended the defendant
No.2 pending enquiry;
(xi) that notwithstanding the defendant No.2 being under
suspension, she again visited the office premises of the plaintiff at
New Delhi and disrupted the functioning of the office by shouting at
CS(OS) 15/2016 Page 5 of 18
company officials, creating a commotion and threatening other
employees with police action;
(xii) that on or around 28th November, 2015, the defendant No.1
started publishing wholly incorrect and misleading posts on his
Facebook profile, accessible at
https://www.facebook.com/mitun.garg?fref=ts, wherein the
defendant No.1, without naming the plaintiff, claimed that one
"deceased girl in Delhi working with one of the reputed life
insurance company" needed justice; the defendant No.1 subsequently
posted an audio which appeared to be in the voice of the defendant
No.2; thereafter on 30th November, 2015, the defendant No.1
threatened to reveal the name of the plaintiff company on his
Facebook page and on 1st December, 2015, published the name of the
plaintiff and posted as under:
"Avoid 16 Dec 2012" Now time to disclose the name of
the company where this incident happened in Delhi.
There is no fault of company in this act but company
should fire the employees who don't respect women but
this company supported that culprit employees and
punished that girl who is sexually harassed by these
employees of esteemed organization "Exide Life
Insurance, kanchanchenga building, Barakhamba Road,
New Delhi.
Girls are safe in Delhi or not???? Kya fir 16 Dec 2012
repeat hotarahega Delhi mein...
Very soon I will share the copy of FIR which was logged
after 24 days of incident... Great Delhi Police...";
CS(OS) 15/2016 Page 6 of 18
(xiii) that thereafter, the defendant No.1 in connivance with the
defendant No.2 posted a voice clip on 9th December, 2015 and on 2nd
December, 2015, as under:
""Avoid Dec 2012"
Today I will post one video of the deceased girl who
molested by 2 Big people in Exide Life Insurance,
barakhamba, new Delhi on 24th Dec 2015 but all
molesters are still free with Delhi Police help and
company's support... But that girl is in trauma and
depressed. If justice of our country is that slow and
heartless then she should commit suicide and create a
example for all the company's who recruited molesters in
their company.... Watch this space for these molester's
name and phone number.... IF you love your sister and
respect rakshabandhan then send one must to them..."
(sic)";
(xiv) that the defendant No.1 also posted on his Facebook page
photographs of the FIR lodged by the defendant No.2 against the
employees of the plaintiff;
(xv) that thereafter also, the defendant No.1 continued to post on
his Facebook page including the following:
"To all the girls. Pls don't join exide life insurance
company.... This company don't respect women and all
the high post GM and DGMs are women eater and the
beauty is if u complaint against them then they will
punish girls..." (sic)
"Avoid 16 Dec 2012... simple message to Exide Life
Insurance Management.... STOP DOING SEXUAL
HARASSMENT AND STOP SPREADING RUMORS OF
GIRLS CHARACTER... U ALL ARE ALSO BROTHERS,
FATHER AND HUSBAND OF ANY GIRL.
CS(OS) 15/2016 Page 7 of 18
Ladies who are supporting this kind of guys in
molestation of girls should change their identity from
women to any...Just for money...Shittt...
I hate myself that I spent 2 years in this kind of money
where people respect money but disrespect women... I
think they didn't born by mother but bought by money...
SO SAD... THIS IS THE ONLY REASON WHY 23 RAPE
HAPPENDED EVERY HOUR IN INDIA..."(sic)
"Avoid 16 Dec 2012. Great thinking of Esteemed
Organization "Exide Life Insurance"...
In this Company, people feel that all female employees
are of a loose character, and that such women can be
harassed or bought. They should be behind bars. I have
started a war against such violators in order to save such
working women. Please support me in this war.
Out of 14 years of working experience in corporate, I
realized corporate people don't have heart and emotions.
They just become machines and use their down line as
per their requirement (Legal or illegal) Will give you
some facts and proofs experienced and collected in one of
the corporate "Exide Life Insurance" is now known as
girl molester training and execution institute in India.
Lets see the truth of what is happening in Exide Life
Insurance...."
(xvi) that all the allegations, innuendos made against the plaintiff are
utterly false.
8. The defendant No1, in the reply in person, copy of which was
forwarded to the plaintiff, i) pleaded that he left the services of the plaintiff
because the plaintiff was trying to force him in indulging in unethical and
wrong activities like sexual harassment of female employee by seniors;
CS(OS) 15/2016 Page 8 of 18
ii) pleaded, that in October, 2015, the plaintiff transferred him to Mumbai
because he was witness to sexual harassment which happened on 24 th
September, 2015; that he was also offered money to change his statement;
iii) pleaded, that he did not post anything and on learning of same had
complained to Facebook and also deleted his account. The defendant No.2,
in the reply filed in person, copy of which was forwarded to the plaintiff,
pleaded, (a) that the plaintiff manipulated facts and conducted a false ICC
Committee and tried to protect the accused persons; (b) that the plaintiff‟s
management harassed the defendant no.2 a lot since April, 2015 and forced
her to leave the job; (c) that the defendant No.2 requested HR department
several times that her Reporting Manager was not supporting her since she
had filed a complaint and that she was not being informed about the
meetings and trainings for which she was liable like other employees; (d)
that during the meeting on 24th September, 2015, the Manager of the
plaintiff misbehaved with the defendant No.2 and used abusive language
and in pursuance to which FIR was lodged; (e) that on 15th October, 2015,
the Advocate of the plaintiff offered to bribe the defendant No.2 to
withdraw the case; and, (f) that the plaintiff in the plaint had not given the
true version of the incident on 24th September, 2015.
9. The defendants No.1&2, in their joint "reply" filed on 24th
December, 2016, have inter alia pleaded (i) that the present suit is a
counterblast to the complaints made by the defendants; (ii) that the plaintiff
had not taken any steps against the officials against whom the defendant
No.2 had complained; (iii) that the defendant No.1 was the eye witness of
the incident and used to support the defendant No.2; (iv) that the defendant
CS(OS) 15/2016 Page 9 of 18
No.1 was unaware of the posts on the Facebook page pleaded by the
plaintiff; (v) that the plaintiff, on resignation of the defendant No.1, seized
the laptop provided by the plaintiff to the defendant No.1 and all the
passwords were saved in the laptop; (vi) that the said laptop was used by
the plaintiff to post the material pleaded in the plaint; (vii) that the
defendants have no connection with the posts on the Facebook page, on the
basis whereof the suit has been filed; (viii) that no defamatory material had
been posted by the defendant No.1; (ix) that the defendant No.1 had also
registered complaints against the plaintiff and its officials with the Delhi
Commission for Women.
10. The counsel for the plaintiff, in support of the insistence of the
plaintiff to pursue this suit for recovery of damages/compensation, now
only from the erstwhile defendant No.1 who is now the sole defendant
Mitun Garg, argued (a) that the relief of permanent injunction would save
the plaintiff in future only and would not compensate the plaintiff for the
past acts of the defendant; (b) that the defendant has not shown any
remorse; (c) that the plaintiff had caused an inquiry to be conducted on the
complaint of the defendant No.2 and in which inquiry, no case of sexual
harassment was made out; (d) that once plaintiff is proved to have been
defamed, the plaintiff is automatically entitled to damages for defamation;
(e) that the plaintiff was however willing to consider accepting apology
from the defendant.
11. The defendant appearing in person stated that since the allegedly
defamatory posts were not published by him, the question of his
apologizing for the same did not arise.
CS(OS) 15/2016 Page 10 of 18
12. The counsel for the plaintiff, during the hearing, referred to:
(I) Hindustan Unilever Limited Vs. Reckitt Benckiser India
Limited ILR (2014) II Delhi 1288 (DB), in paras 61, 62 & 66
whereof a number of foreign judgments holding that a successful
plaintiff in a defamation action is entitled to recover, as general
compensatory damages, such sum as will compensate him for wrong
he has suffered and that though good name of a company is a thing of
value and though actual financial loss is difficult to prove but that
does not mean that no compensation is to be awarded, were cited;
(II) Nadirshaw Hormusji Sukhia supra but which only held that
grant of contemptuous damages is in the discretion of the Court;
(III) Mohammad Samiullah Khan Vs. Bishu Nath AIR 1928 All
316 holding that it is not essential for a plaintiff to plead and prove
special damage and that general damages can be awarded;
(IV) Jameel (Mohammed) Vs. Wall Street Journal Europe Sprl
[2006] UKHL 44 also holding that a company‟s good name is a thing
of value which it is proper for the law to protect and that financial
loss is difficult to prove; and,
(V) Frank Finn Management Vs. Subhash Motwani 2008 (106)
DRJ 921, where though it was found that portions of the impugned
article were per se defamatory but the plaintiff having failed to show
that the same were defamatory to the plaintiff‟s reputation, the suit
was dismissed.
CS(OS) 15/2016 Page 11 of 18
13. The counsel for the plaintiff has also handed over written
submissions and in which it has additionally been contended that a suit
instituted by way of a plaint is to proceed as per CPC and the Delhi High
Court (Original Side) Rules, 1967 and that the plaintiff has a right to expect
his suit to proceed as per the CPC and the Rules. It has further been
contended that the present suit does not fall within the ambit of situation in
which the suit can be disposed of without trial.
14. I have considered the contentions of the counsel for the plaintiff and
am of the view that the present is not a suit which should be put to trial on
the claim of the plaintiff for recovery of damages. My reasons for holding
so, are as under:
(A) The allegedly defamatory statements imputed to the erstwhile
defendant No.1 and now sole defendant Mitun Garg are in support of
the grievance of the erstwhile defendant No.2 Sana Khan against the
plaintiff and its officials and which grievance the said defendant No.2
was canvassing by way of FIR against the officials of the plaintiff
and complaint against the plaintiff to the Delhi Commission for
Women. None of the allegedly defamatory statements attributed to
the defendant No.1 are in any other context or relating to anything
else.
(B) The plaintiff also in the suit, claimed compensation in the sum
of Rs.2,50,00,000/- jointly and severally from both the defendants.
The plaintiff did not segregate the compensation claimed from the
defendant No.1 and the compensation claimed from the defendant
No.2.
CS(OS) 15/2016 Page 12 of 18
(C) The officials of the plaintiff, against whom the erstwhile
defendant No.2 had lodged the FIR, and the defendant No.2, on 27th
September, 2017, before the Delhi Mediation Centre, Patiala House
Courts, New Delhi, arrived at a settlement and agreed (i) that the
plaintiff shall withdraw the present suit against the defendant No.2
only; (ii) that the officials of the plaintiff accused in the FIR shall file
a petition for quashing of FIR against them and the defendant No.2
shall cooperate in the quashing proceedings; (iii) that the plaintiff
shall issue a fresh relieving letter to the defendant No.2 at the time of
quashing of the FIR; (iv) that any proceeding before any Court/forum
initiated by either of them against each other shall be deemed to have
been withdrawn in view of the settlement.
(D) Though the plaintiff was not an accused in the FIR in
prosecution whereof the parties were referred to Mediation, but in the
settlement arrived at, undertook obligations as aforesaid and has
abided by the said obligations including by filing IA No.2160/2018
under Order XXIII Rule 3 of the CPC jointly with the defendant
No.2. It is thus evident that the settlement, though between
employees of the plaintiff accused in the FIR and the defendant No.2,
had the full support of the plaintiff and was with the consent of the
plaintiff.
(E) The damages which were claimed jointly and severally from
both the defendants, have not been amended, even after settling with
the defendant No.2 and from whom the plaintiff now does not seek to
CS(OS) 15/2016 Page 13 of 18
recover anything. Now the entire damages of Rs.2,50,00,000/- are
claimed from defendant no.1 who is now the sole defendant.
(F) The plaintiff having arrived at settlement with the defendant
No.2, after orders on the need to put the suit to trial on the claim of
the plaintiff for damages had been reserved, is deemed to be fully
aware and conscious of the effect thereof on the claim of the plaintiff
for damages against the defendant No.1.
(G) The aforesaid has resulted in a peculiar situation. The
allegedly defamatory statements claimed to have been published by
the defendant No.1 (now sole defendant) make public the complaint
of the defendant No.2 against the plaintiff and its officials. The
compromise arrived at between the plaintiff and defendant no.2 does
not contain any withdrawal of the complaint so made by defendant
no.2 against the plaintiff and its officials; all that the defendant no.2
agreed in the compromise was to not prosecute the officials of
plaintiff and co-operate in quashing of FIR and not to proceed with
complaint against the plaintiff. It is thus not as if there is any
admission of the defendant no.2 of the falsity of facts on which FIR
was lodged or other complaints made. Interestingly, though the
defendant no.2, on 28th April, 2017 had offered to suffer a decree for
permanent injunction as claimed, the plaintiff, while settling with
defendant no.2, did not deem it necessary to obtain a decree for
permanent injunction even against defendant no.2 and chose to
withdraw the suit against her.
CS(OS) 15/2016 Page 14 of 18
(H) I have wondered, whether the plaintiff can be permitted to,
while settling with the defendant No.2, on FIR at whose instance the
officials of the plaintiff were being prosecuted continue with the
claim for damages from the defendant No.1, who was nothing but a
supporter or mouthpiece of defendant no.2.
(I) To allow the plaintiff to do so will have an adverse effect on
the society in general. In future, colleagues and other persons at a
workplace will hesitate to come out in support of victims of sexual
and other harassment under fear of the management, while buying
peace with the victim, to prevent their name from being sullied
further, turning its ire towards such supporters, literally leaving them
high and dry.
(J) It is the duty of this Court to ensure that its process is not used
to do what will adversely affect the society in general.
(K) The plaintiff, engaged in business of life insurance ought to
understand so.
(L) The settlement arrived at by the plaintiff with the defendant
No.2 has left the defendant No.1, who had filed a joint reply with the
defendant No.2, in a situation in which it will be highly inequitable to
permit the plaintiff to proceed with the claim for damages against the
defendant No.1. As aforesaid, the allegedly defamatory statements
allegedly published by the defendant No.1 are nothing but making
public the grievance/FIR of the defendant No.2 against the plaintiff
and its officials. It is not as if the defendant No.2 made such
CS(OS) 15/2016 Page 15 of 18
grievance against the plaintiff and its officials only to the defendant
No.1. The defendant No.2 had taken recourse to legal process with
respect to her said grievance and was pursuing the same and
reiterating the same including in the reply filed in this suit jointly
with the defendant No.1 and till the settlement was arrived at with the
plaintiff. The said reply has also not been withdrawn and stands.
The grievance of defendant no.2 against plaintiff and its officials thus
were in public domain. The defendant, to prove his defence in the
said reply has to necessarily examine the erstwhile defendant no.2
and who has been silenced by the plaintiff. The plaintiff, by seeking
to proceed with the suit against defendant, cannot be permitted to so
steal a march by disturbing the level playing field.
(M) The cause of action in the present suit, pleaded by the plaintiff,
was joint and several against the defendants No.1&2. The plaintiff,
if were interested in recovery of damages and in proving the falsity
of the claims of the defendant No.2, ought not to have settled with
the defendant No.2. However, the plaintiff choose to settle
selectively with the defendant No.2 only from whose actions the
plaintiff was feeling the pinch by its officials being prosecuted and
the likelihood of proceedings in the prosecution becoming public.
(N) There is another aspect. The Facebook postings allegedly
made by defendant, either publish the complaint of the defendant
no.2 or contents thereof or the audio of the defendant no.2 with
respect thereto. I have in Mahadev I. Todale Vs. Frankfinn Aviation
Services Pvt. Ltd. (2017) 242 DLT 273, SLP(C) No.28925/2017
CS(OS) 15/2016 Page 16 of 18
preferred whereagainst was dismissed on 10th November, 2017, held
as not maintainable, a suit for damages for defamation by publication
of complaints made to the Police. It was inter alia held that the
contents of a FIR are in public domain, with the Police itself being
required to publish it; that a complainant pursuing due process of
law, even if his/her complaint is defamatory, is entitled to protection
from a suit for defamation and this protection is the absolute
privilege accorded in the public interest to those who make
statements to the Court in the course and in relation to judicial
proceedings. In this light also, all that the defendant No.1 was doing
was publishing the complaint of the defendant No.2 against the
plaintiff and its officials. A Nine Judges Bench of Supreme Court in
Naresh Shridhar Mirajkar Vs. State of Maharashtra AIR 1967 SC
1 held that what takes place in the Court is public and the publication
of the proceedings merely enlarges the area of the Court and gives to
the trial that added publicity which is favoured by the rule that the
trial should be open and public; it is only when the public is excluded
from audience that the privilege of publication also goes because the
public outside then has no right to obtain at second-hand what they
cannot obtain in the Court itself. It was yet further held that if the
matter is already published in open Court, it cannot be prevented
from being published outside the Court room.
15. It would thus be seen that the plaintiff is not entitled to recover any
damages for defamation from the defendant. Once it is so, it does not
justify following of the procedure prescribed for a suit in the CPC or in the
CS(OS) 15/2016 Page 17 of 18
High Court (Original Side) Rules. It is a well settled principle that the
Courts are not meant to pedantically put the suit through the rigmarole of
the trial, even when it is found that the claim therein is deadwood and has
no possibility of success. Such suits have to be weeded out from the system
of the Court at the earliest so as to not consume the time of the court at the
cost of other deserving lis.
16. Resultantly, without prejudice to the defence of the defendant Mitun
Garg that the allegedly defamatory postings were not posted by him, the
suit is disposed of by passing a decree in favour of the plaintiff and against
the defendant, of permanent injunction in terms of prayer paragraph (ii) of
the amended plaint dated 8th January, 2016, leaving the parties to bear their
own costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
APRIL 11, 2018 „bs‟ CS(OS) 15/2016 Page 18 of 18