Delhi High Court - Orders
Oravel Stays Limited vs Nine Network Private Limited & Ors on 14 November, 2022
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 627/2022 & I.As. 18240/2022, 18508/2022
ORAVEL STAYS LIMITED ..... Plaintiff
Through: Mr. Jayant Mehta, Sr. Advocate
with Mr. Raghav Sabharwal,
Mr. Raghav Bhatia, Mr. Hitesh
Mehta, Mr. Shivam Kaushik,
Advocates (M:9818844415)
versus
NINE NETWORK PRIVATE LIMITED
& ORS. ..... Defendants
Through: Mr. Ram Chander Madan,
Advocate
CORAM:
HON'BLE MS. JUSTICE MINI PUSHKARNA
ORDER
% 14.11.2022 [Physical Hearing/Hybrid Hearing] I.A. 18240/2022
1. This is an application under Order XXXIX Rule 2A read with Section 151 CPC with the following prayers:
"(a) punish the Contemnors for wilful disobedience and abject disregard of the Injunction Order dated October 14, 2022 passed by this Hon'ble Court, including directing the detention of Contemnor No.2, Mr. Nitin Naresh, and Contemnor No.3, Mr. Suresh Bala, in civil prison for the maximum sentence and/or imposition of a heavy fine on them and/or both;
(b) direct the Contemnors to disclose the details of their movable and/or immovable assets and properties, and further direct attachment of the said assets and properties Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:24.11.2022 11:10:03 and appoint an official receiver to sell, transfer or auction the said assets and properties and to hand over the proceeds thereof to the Applicant;
( c) summon and call upon the Contemnors to purge the contempt forthwith by taking such steps including but not limited to taking down the Defamatory Article dated November 2,2022;
( d) pass such other orders to ensure that the Contemnors strictly comply with the Injunction Order dated October 14, 2022 passed by this Hon'ble Court; and
(e)pass any such other or further orders that this Hon'ble Court may deem necessary and proper in the facts and circumstances of the present case."
2. The present application has been filed on behalf of plaintiff against the defendants on the ground that there has been deliberate and wilful disobedience of the injunction order of this Court passed vide order dated 14.10.2022 in I.A. No. 16665/2022.
3. It is submitted that in complete derogation of the injunction order, the defendants herein caused publication of another defamatory article on 02.11.2022 on their website investiva.co.in titled „OYO IPO:25 Questions Every Indian Investor Must Ask Ritesh Agarwal & OYO Before Investing In Upcoming OYO IPO‟ pertaining to the petitioner and its founder, Mr. Ritesh Agarwal.
4. It is submitted that the present suit had been filed seeking permanent and mandatory injunction inter alia to restrain the defendants from making, publishing and disseminating false, defamatory, disparaging and misleading statements/ articles, on their website pertaining to the petitioner company.
5. Learned Senior Counsel appearing for the plaintiff draws the Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:24.11.2022 11:10:03 attention of this Court to the order dated 14.10.2022 passed by this Court, wherein there were directions to immediately take down all the defamatory articles, as listed therein, which were five in number. It is submitted that after passing of order dated 14.10.2022 passed by this Court, the defendants on 15.10.2022 itself published a defamatory article against the plaintiff. Subsequently, it is submitted that on 15.10.2022 itself, the defendants were informed about the directions passed by this Court. Though, the defendants took down the article dated 15.10.2022 on 17.10.2022 & 18.10.2022, however, the defendants continued with their contemptuous act and continued writing various mails to the plaintiff as well as also publishing articles. It is submitted that the defendants wrote e-mail dated 01.11.2022 asking certain questions and comments. Thereafter, without waiting for the response of the plaintiff, on 02.11.2022 itself, an article was published by the defendants. Subsequently, the plaintiff through its legal counsel replied to the e-mail of defendants dated 01.11.2022, by way of an e-mail dated 03.11.2022, wherein the plaintiff replied that the plaintiff does not wish to engage with the defendants given the questions were suggestive of a false narrative and also intended to harm the goodwill and for defaming the plaintiff company.
6. It is further submitted that despite response from the legal counsel of the plaintiff dated 03.11.2022, the defendants sent a reminder of their e-mail dated 01.11.2022 vide their e-mail dated 03.11.2022 requesting for comments on the said questions.
7. It is submitted that the present application for contempt was served in advance to the defendants on 04.11.2022 before filing of the Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:24.11.2022 11:10:03 present contempt application. Despite the same, the defendants shared a draft version of another article, they intended to publish and requested inputs form the plaintiff on 04.11.2022 after some time of receipt of the advance copy of the contempt application. It is further contended that without waiting for any response from the plaintiff, the defendants again published the draft article shared over e-mail on the website on 04.11.2022 titled as „Oyo Through Their Lawyer Denied To Respond To Questions Raised By Inventiva Calling Them False & Defamatory. Can Questions Be False And Defamatory?‟
8. It is further submitted on behalf of the plaintiff that the defendants sent another email to the plaintiff on 05.11.2022 at 1:00 P.M., requesting the details of the internal probe which the company initiated when news surfaced on the internet about a couple's intimate moments being filmed in one of the partners hotel. Thereafter, the defendant shared over mail a draft of another article on 05.11.2022 at about 1:30 P.M. which it intended to publish. The proposed draft title of the article was ""What Went Wrong At OYO In last 1 Year".
9. Attention of this Court has also been drawn to another email dated 05.11.2022 written at 2:17 P.M., wherein the defendant stated that they have recently come across some newspaper about the company being fined by the Competition Commission of India as well as by its counterpart in the U.S.A. The defendant asked for inputs for the same from the plaintiff. Again without waiting for any response from the plaintiff, the defendant published a draft article on 06.11.2022 with the title "All that Went Wrong with OYO hotels in the last one year".
Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:24.11.2022 11:10:0310. It is pointed out by ld. Senior counsel for the plaintiff that the said article also mentions the headlines of previously published articles of other agencies, platforms, magazines that relate to the plaintiff company and provide accessible links to those articles. It is submitted that the defendant did not bother to verify independently any of the facts or claims in the articles before reproducing the articles on the website.
11. Defendant again sent another email dated 07.11.2022, to the plaintiff alleging that many of the hotels of the plaintiff in Tier - II and III areas of India are built without necessary permits and are illegal. Similarly, defendant again sent another mail dated 08.11.2022 to the plaintiff casting aspersion on the loan transactions between the RA Hospitality and the founder, Mr. Ritesh Agarwal, asking scandalous questions concerning the source of the funds at RA Hospitality.
12. It is also pointed out that the defendants sent 6 emails on 11.11.2022 and published an article on 12.11.2022 with the title "All that went wrong with OYO hotels in the last 2 years"
13. Ld. Senior Counsel for the plaintiff has relied upon the following judgments:
I. J. Sudhir Chandrashekhar Vs. T. Lokaprakash, 2001 SCC OnLine Kar 210 II. Delhi Development Authority Vs. Skipper Construction Co. (P) Ltd. and Another, (1996) 4 Supreme Court Cases 622 III. Swatanter Kumar Vs. The Indian Express Ltd. & Ors., 2014 SCC OnLine Del 210 Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:24.11.2022 11:10:03
14. Relying upon the aforesaid judgments , it is contended that where an act is done in violation of an order of stay or injunction, it is the duty of the court as a policy to set the wrong right and not allow perpetuation of the wrong doing.
15. On the other hand, Mr. Ram Chander Madan, Advocate appears on advance notice. At the outset, he tenders an unconditional apology on behalf of the defendant and states that though an undertaking had been given in open court when the matter was listed on 10.11.2022, he submits that his client had misunderstood the said undertaking. He submits that when the fact of article being published on 12.11.2022 was brought to his notice, he immediately directed his clients, i.e., the defendants herein to remove the said article. He submits that the said article has since been taken off from the website. The said statement is made by ld. Counsel on instructions of defendant No.2, who is present in court.
16. Ld. Counsel appearing for the defendants further submits that the defendant is not a fly-by night operator and that he is registered with the Registrar of Newspapers For India, RNI. He further submits that the defendant is registered as a newspaper entity and writes various articles online as well as publishes the same physically.
17. He further submits that defendants publish 50 to 70 articles everyday on their website. Ld. Counsel for the defendants submits that in fact defendant No.2 has written 8 to 12 articles in praise and in favour of plaintiff herein. He further submits that defendant No.2 has approximately 36 employees under him. He further submits that the present is a case of Strategic Lawsuits Against Public Participation Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:24.11.2022 11:10:03 (SLAPP) litigation with the only objective to silence the defendant.
He further submits that the present application is not ex facie maintainable. He further submits that the present application is also pre mature as this Court has not given any finding with respect to the articles being defamatory, which finding will be given only after trial. Defendants further submits that they plead truth, fair comments, qualified privilege and in public interest, as their defence. He further submits that the defendant undertakes investigative journalism and that the questions that were asked from the plaintiff were in furtherance of that. He further submits that the questions asked from the plaintiff are not defamatory per se. He further relies upon the judgment of this Court in the case of Tata Sons Limited Vs. Greenpeace International & Anr., 2011 SCC OnLine Del 466.
18. Issue notice. Notice is accepted by ld. Counsel for the defendant. Let reply be filed within a period of four weeks. Rejoinder thereto, if any, be filed within a period of two weeks thereafter.
19. Though ld. Counsel for the defendant has tendered an unconditional apology, fact remains that even after interim order of 14.10.2022, defendant had published articles even though he was aware of the interim order passed by this Court. Neither any clarification was sought from this Court nor any permission was taken from this Court with a plea that the articles sought to be published are only in the nature of investigative journalism or that they are truthful and not defamatory. The plea of the defendants that only previous articles written qua the plaintiff, have been reproduced, holds no water for the reason that no such permission was sought from this Court Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:24.11.2022 11:10:03 despite being in the knowledge of the order passed by this Court.
20. At this stage, ld. Counsel for the defendant on instructions states that the defendant undertakes that the defendants shall not write any letters/mails to the investors of the plaintiff. The said undertaking is taken on record and the defendant is bound by the said statement.
21. Further, the defendant is directed to comply with the order dated 14.10.2022 passed by this Court. Since the subsequent articles dated 02.11.2022, 04.11.2022, 06.11.2022 that have been published subsequent to the interim order passed by this Court, without leave of this Court, it is directed that said articles may be taken down within a period of 48 hours.
22. It is made clear that this Court has not expressed any opinion as regards the nature of the articles written, whether they are defamatory or not, as the said issue shall be decided after hearing both the parties once reply has been filed on behalf of the defendant.
23. Ld. Counsel appearing for the defendants submits that he has already filed an application under Order XXXIX Rule 2A CPC vide diary no. 1869988 on 13.11.2022. He submits that he shall be making his detailed submissions with respect to vacation of the interim stay by way of the said application. Be that as it may, the said aspects shall be considered as and when such application is listed before this Court and is taken up for consideration.
24. List on 06.02.2023, date already fixed.
MINI PUSHKARNA, J NOVEMBER 14, 2022/au Signature Not Verified Digitally Signed By:PURAN SINGH TARIYAL Signing Date:24.11.2022 11:10:03