Bombay High Court
Lodha Developers Limited vs Krishnaraj Rao And 2 Ors (Def) And ... on 29 January, 2019
Author: S.C. Gupte
Bench: S.C. Gupte
sg nmsl243-19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (L) NO.243 OF 2019
IN
SUIT (L) NO.70 OF 2019
WITH
NOTICE OF MOTION (L) NO.152 OF 2019
IN
SUIT (L) NO.70 OF 2019
WITH
NOTICE OF MOTION (L) NO.180 OF 2019
IN
SUIT (L) NO.70 OF 2019
WITH
NOTICE OF MOTION (L) NO.227 OF 2019
IN
SUIT (L) NO.70 OF 2019
WITH
NOTICE OF MOTION (L) NO.228 OF 2019
IN
SUIT (L) NO.70 OF 2019
Lodha Developers Limited ...Applicant/Plaintiff
vs
Krishnaraj Rao And 2 Ors. ...Defendants
.....
Mr. Janak Dwarkadas, Senior Advocate, a/w. Mr. Sharan Jagtiani, Mr.
Anirudh Hariani, Mr. Ameet Hariani, Mr. Noorudin Dhilla and Mr. Zaid
Wahidi, i/b. Hariani and Co,for the Plaintiff/Applicant.
Mr. Krishnaraj Rao, for Defendant No.1 present in person.
Mr. Zal Andhyarujina, a/w. Mr. Omkar Gupte and Mr. Jarin M. Doshi, i/b.
Malvi Ranchoddas and Co., for Defendant Nos. 2 and 3.
.....
CORAM : S.C. GUPTE, J.
DATED : 29 JANUARY 2019 P.C. :
Pg 1 of 8 ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:29:27 ::: sg nmsl243-19.doc . This notice of motion is taken out by the original Plaintiff seeking certain reliefs against Respondent No.4 herein, who is proposed to be added as Defendant No.4 to the Plaintiff's suit. Respondent No.4 is Youtube LLC, a company constituted under the laws of United States of America, having its Mumbai address, as indicated in the cause title of the notice of motion. It is prayed that pending the hearing and final disposal of the suit, Respondent No.4 should be directed to forthwith deactivate, terminate, remove, block, take-down and disable YouTube channel titled 'Krishnaraj Rao' at URL: https://www.youtube.com/user/kriskkphoto. The motion seeks other connected reliefs in respect of this youtube channel.
2. The Plaintiff has filed the present suit complaining of publication of defamatory material against the Plaintiff by the original Defendants. The material concerned the flats sold by the Plaintiff to Defendant Nos. 2 and 3. The Defendants had inter alia claimed in the publication that the Plaintiff had used defective and inappropriate construction material in these flats. The Plaintiff had taken out a Notice of Motion in the suit (Notice of Motion (L) No.152 of 2019) for prevention of further publication of this material. At the hearing of the ad-interim application of the Plaintiff in this notice of motion, a consent order was passed by this Court on 21 January 2019. By this order, the Court directed the Defendants not to upload any further videos regarding the Plaintiff and its group companies or put up or write any blog on any website or communicate the same to any newspaper or magazine. The consent order records appointment of an architect - M/s. Kishor Karamsey & Co. to make a report with regard to (i) condition of the two flats purchased by Defendant Nos. 2 and 3, (ii) difficulties therein, if any, (iii) possible costs of rectification, and (iv) comparison of similar flats with a view to compare the Pg 2 of 8 ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:29:27 ::: sg nmsl243-19.doc work in other flats with the flats sold to Defendant Nos. 2 and 3. It is submitted that after this consent order was passed, Defendant No.1 published and uploaded three more videos, one of which was in clear breach of para (e) of the ad-interim order dated 21 January 2019. The two other videos concerned the Court proceedings of the notice of motion. It is submitted that in these two videos, Defendant No.1 made various scurrilous and offensive statements against the learned Judge, which have the tendency of lowering the majesty and dignity of this Court. It is submitted that a second notice of motion was thereupon moved by the Plaintiff (Notice of Motion (L) No.180 of 2019) which sought reliefs under Order 39 Rules 2A and 11 of the Code of Civil Procedure. When these videos were brought to the notice of the learned Judge at the hearing of that motion, a further order was passed by this Court on 23 January 2019 issuing inter alia a contempt notice returnable on 19 March 2019 to Defendant No.1 to show cause why he should not be held guilty of contempt of Court. The order also directed youtube to forthwith remove and/or take down the offending videos uploaded on the site, the transcripts of which were marked "X", "X-1"
and "X-2", for identification. This order is yet to be implemented. (There was some application for speaking to the minutes of that order, which took some time.) The corrected order is now available and it is submitted that the same will be forwarded to Respondent No.4 Youtube LLC for necessary action in accordance with the directions of the Court.
3. The grievance of the Plaintiff in the present notice of motion (Notice of Motion (L) No. 243 of 2019) is that contrary to the directions of the Court, Defendant No.1 has published many more videos in breach of the injunction order passed by this Court. These are broadly described in paragraph 8 of the affidavit in support of the notice of motion and their Pg 3 of 8 ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:29:27 ::: sg nmsl243-19.doc transcripts are annexed as Exhibits "C" to "J" to the affidavit. It is submitted that in addition to these videos, there are other videos published on the site, the transcripts of which are annexed as Exhibits "K" to "Q" to the affidavit. It is submitted that these videos contain the self-same scurrilous and offensive material against the Judge in person and his conduct in Court at the hearing of the earlier notices of motion. Based on this material, it is submitted that since Defendant No.1 has persisted in publishing defamatory as well as contemptuous material on his youtube channel, Respondent No.4 youtube LLC should be directed to deactivate, terminate, remove, block, take-down and disable the youtube channel.
4. Defendant Nos. 2 and 3 are represented through Counsel. Their case in the original defamation suit and the motion taken out by the Plaintiff in aid of its main prayers in the suit is that the statements made in the videos concerning the defective material used in their flats, and which forms part of the original publications which were complained of by the Plaintiff in the present suit, are true and they would like to justify these statements at the hearing of the suit and prima facie at the hearing of the original notice of motion. Learned Counsel appearing for these Defendants submits that he distances himself from the publications made by Defendant No.1 after the order of 21 January 2019. Learned Counsel submits that he joins with learned Counsel for the Plaintiff to submit that these publications indeed amount to breach of the injunction order passed by this Court on 21 January 2019, as also contain scurrilous and offensive material having the tendency of lowering the majesty and dignity of this Court. Learned Counsel, however, submits that taking off the entire channel may not be a proper order to pass in the circumstances of the case. It is submitted that instead the Court may direct taking off the offensive material circulated on the Pg 4 of 8 ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:29:27 ::: sg nmsl243-19.doc channel after 21 January 2019. Learned Counsel submits that the original publication on the channel, which was part of the Plaintiff's original complaint in the suit, is not directed to be removed by the Court in its ad- interim orders passed so far.
5. Defendant No.1 appears in person. Defendant No.1 has not taken permission of the Court Committee for appearance in person. He, however, submits that considering the nature of statements made by him on his channel, advocates are reluctant to represent him and, in any event, he would like to espouse his own cause. After hearing him briefly, I am of the view that Defendant No.1 should be permitted to conduct his case in the present proceedings in person and I allow him to do so. Defendant No.1 submits that he is not prepared to take off the material published by him on his channel. He submits that he has a genuine grievance about the manner in which Court proceedings have been conducted in the matter. He submits that though he was party to the original suit and the notice of motion, he was not allowed to take part in the joint inspection ordered by the Court. He also submits that though his Advocate did give consent on his behalf when this Court passed its first ad-interim order on 21 January 2019, he in fact had not given any consent; his Advocate had rather brushed him aside when he sought to protest. Be that as it may (this may appropriately form part of the hearing of the original notice of motion when it is taken up), Defendant No.1 states that he shall not henceforth during the pendency of the original notice of motion, namely, 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 Nos. 2 and 3 or the conduct of the Court proceedings so far or hereafter. He submits that he shall henceforth, during the pendency of the notice of motion, publish only Pg 5 of 8 ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:29:27 ::: sg nmsl243-19.doc orders passed by this Court in the proceedings without offering any comment. He submits that this statement of his is without prejudice to his rights and contentions concerning either the nature of the material, which is said to be defamatory and scandalous by the Plaintiff and Defendant Nos. 2 and 3 or his defence vis-a-vis such material.
6. On these facts, this Court has to consider, firstly, what ad- interim relief should be granted to the Plaintiff in the present notice of motion and, secondly, what orders should be passed in the original notice of motion, as also the supplementary motion taken out on 22 January 2019 under Order 39 Rule 2A and 11 of the Code of Civil Procedure, concerning their hearing.
7. Prima facie the material published on the youtube channel is in breach of the original order of the Court passed on 21 January 2019 as also the later order passed on 23 January 2019. This Court has already observed in its order dated 23 January 2019 that the allegations made in the videos, transcripts whereof are produced as Exhibits "X" and "X-2" are prima facie scurrilous, intimidatory and scandalous lowering the dignity of the Court and, accordingly, a show cause notice has been directed to be issued under the Contempt of Courts Act, 1971. The further material published by Defendant No.1, transcripts whereof are at Exhibits "C" to "J" as well as Exhibits "K" to "Q" of the affidavit of the present notice of motion, should be appropriately considered in the contempt notice issued against Defendant No.1 as an aggravated act of contempt. The parties will be at liberty to file their respective pleadings in the contempt notice on that basis. The notice will be decided on its returnable date.
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8. As for now, whilst the offending material can be ordered to be removed from the youtube channel by issuing appropriate directions to Respondent No.4 youtube LLP in keeping with what this Court has done on 23 January 2019, considering the statement made by Defendant No.1, and which is accepted by this Court, that he will not publish any further material about either the dispute with Lodha, or the Court proceedings conducted so far or to be conducted hereinafter in the matter, except reporting the orders of this Court without any comments, I am of the view that the hearing of the original notice of motion should be taken up expeditiously and Defendant No.1 should be allowed to participate in the hearing. It is ordered accordingly.
9. It is also ordered that Defendant No.1 shall be allowed to participate in the inspection of flats ordered by this Court on 21 January 2019. The Court Commissioner shall inspect the premises and comply with the order passed by this Court in the presence of all parties, i.e. the Plaintiff and Defendant Nos. 1, 2 and 3. The original order passed on 21 January 2019 stands modified to that extent. The Court Commissioner is directed to visit the flats in the morning hours with notice to all parties and also take appropriate photographs and videos, as he may deem fit, so as to give a true and correct picture of the site to the Court.
10. Parties may file their respective replies, rejoinders, etc. and complete their pleadings in the Notice of Motion within one week from today. Defendant No.1 requests the Court to make audio/video recording of the hearing of the notice of motion. He submits that the Supreme Court has, in a recent order passed in September 2018, underlined the importance of such recording. The question whether in the light of the judgment of the Pg 7 of 8 ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:29:27 ::: sg nmsl243-19.doc Supreme Court such recording should be allowed, will be considered by the Court at the very outset, when the motion is taken up for hearing. Notice of Motion to come up for hearing on 14 February 2019.
11. In the meantime, pending the hearing and final disposal of this notice of motion and also further order to be passed in Notice of Motion (L) No.150 of 2019, there will be an order in terms of prayer clause (b). Respondent No.4 youtube LLC shall forthwith remove and take down the material described in Exhibits " C" to "J" and "K" to "Q" of the Plaintiff's affidavit dated 28 January 2019 in the present Notice of Motion. This will be without prejudice to the contentions of all parties.
12. Leave to amend the present notice of motion. Amended motion to be served immediately on all contesting parties.
( S.C. GUPTE, J. ) Pg 8 of 8 ::: Uploaded on - 30/01/2019 ::: Downloaded on - 31/01/2019 01:29:27 :::