Delhi District Court
M/S I Broad 7 Communication P Limited vs Gaurav Kumar Patel on 29 August, 2023
DLND010018552020
IN THE COURT OF ADDITIONAL DISTRICT JUDGE- 01,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Presided over by :- MS. VIJETA SINGH RAWAT (DHJS)
CS No. 141/20
M/s I Broad 7 Communication (P) Limited
(M/s I Broad Connect (P) Limited)
Registered Office at - 10, Rangpuri,
Near Radission Hotel,
Mahipalpur, New Delhi-110037
Corporate Office
At 5th Floor, Offce no.3512/13/14,
Tower -3, Express Trade Towar-2,
Sector 132, Noida,
Uttar Pradesh-201301
......... Plaintiff
Versus
Sh. Gaurav Kumar Patel
Ex-employee of I Broad 7 Communication
Pvt. Ltd.
(M/s I Broad Connect (P) Limited)
Flat no. B-2, Uniworld Garden 2, Sector-47,
Gurugram, Haryana
Also at:
30- Capital Apartments,
Sector-IA, Dwarka, New Delhi
CS No. 141/2020
M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 1 of 20
And
Permanent resident of :
Vill. & P.O. Hasanpur,
Mahnar, District Vaishali,
Bihar-844506
........ Defendant
Suit presented On : 26.02.2020
Arguments Concluded On : 10.08.2023
Judgment Pronounced On : 29.08.2023
JUDGMENT
1. This suit has been filed by the plaintiff averring that (a) It is a renowned company in advertising business. (b) It appointed the defendant as its employee in the capacity of Business Development Expert vide appointment letter dated 06.04.2015. (c) The defendant also entered into an Employment Non Disclosure Agreement (hereinafter to referred to as the 'NDA') dated 28.09.2015 and thus, undertook to maintain confidentiality of information and trade secret received by him during his employment and not solicit, the existing customer of the plaintiff for 3 years from the date of his separation from the plaintiff. (d) However, in breach thereof, after resigning from the plaintiff company, the defendant joined the competitor of the plaintiff company and shared trade secrets with it causing huge monetary loss to the plaintiff company (e) Thereafter, on 19.12.2019, the plaintiff also sent an email to the directors of the plaintiff company and other ex-employees of the plaintiff making defamatory statements against the company also ruined its image. (f) Legal notice dated 27.12.2019, was sent to the plaintiff which was duly served upon him CS No. 141/2020 M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 2 of 20 but to no avail as the defendant did not unconditionally apologise for his acts. Hence, the present suit has been filed seeking the following reliefs:
'.....(a)Declare that the defendant was bound with the terms and conditions of Non Disclosure Agreement executed on
28.09.2015 the employment is not entitled to use information and commercially valuable Trade Secrets of the plaintiff company personally and or any other persons and companies which are involved in the same business in which plaintiff company is doing business;
(b) Declare the defendant is not entitled to use the information and commercially valuable trade secrets of the plaintiff company with anyone and using the said information is illegal and liable to pay damages for the same to the plaintiff company;
(c) pass a Decree against the defendant for defaming the plaintiff company as well as its Directors be sending an email dated 19.12.2019 and thereby damaging the image of the plaintiff company and its Directors in General Public. Hence, the defendant is liable to make a payment sum of Rs. 1 Crore with an interest @ 24% per annum and 2% to the plaintiff company.
(d)pass a Decree of permanent and mandatory injunction, restraining the defendant, their agents, family members, friends, any other companies, persons etc. from using the information and commercially valuable trade secrets for their own gain, also restrain him to share information and commercially valuable trade secrets with the companies those are involved in the same business in which the plaintiff company doing business in the interest of justice;
(e) To grant any other and further relief as deemed fit and proper in the interest of justice.' WRITTEN STATEMENT
2. By way of a written statement, preliminary objections have been taken (a) qua the territorial jurisdiction of this Court, however, it CS No. 141/2020 M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 3 of 20 has not been subsequently pressed (b) that the plaintiff did not approach the Court with clean hands and (c) that NDA is a void agreement under Section of the 27 of the Indian Contract Act, 1872, (hereinafter, to referred to as the 'Contract Act') and so, is unenforceable.
3. On merits, appointment as the Business Development Executive of the plaintiff till 06.04.2015 is admitted. It is also admitted that the defendant ceased to be an employee of the plaintiff company w.e.f. 19.10.2019. However, it has been averred that the defendant performed his duties diligently and brought good business to the plaintiff company during his tenure and he always achieved more than the allocated targets for the financial years 2015-16, 2016-17, 2017- 18 and 2018-19. Credit has also been taken that in the first year of his service, the defendant closed a deal worth Rs.26 lacs with Zomato Media Pvt. Ltd. (hereinafter, referred to as the 'Zomato') followed by a deal worth Rs.4,50,00,000/- in the next year. Further, the defendant states that through his sincere efforts he was also able to bring Food Panda India and Nearbuy India Pvt. Ltd. as clients to the plaintiff company in the year 2018 and 2019. However, the plaintiff states that from the very inception of his employment, he felt cheated as he was not given his due entitlements, increments and incentives, therefore, he was constrained to resign but thereafter, the plaintiff was given a farewell and was assured that his full and final payment would be cleared. But despite repeated follow-ups, his dues were not cleared and so, the mail had been sent as most of the ex-employees also CS No. 141/2020 M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 4 of 20 confirmed that their dues had not been cleared. It is pertinent to mention here that the NDA dated 28.09.2015 has been disputed to be a fabricated document.
REPLICATION
4. Replication is a reiteration of the allegations made in the plaint.
ISSUES
5. Vide order dated 09.02.2021, the following issues were framed :
i) Whether the plaintiff is entitled to a decree of declaration to declare the defendant is bound by the terms and conditions of non disclosure agreement dated 28.09.2015, as prayed for ? OPP.
ii) Whether the plaintiff is entitled to permanent and mandatory injunction thereby restraining the defendant and their agents etc. from using/ sharing the information and commercially valuable trade secrets of the plaintiff, as prayed for? OPP
iii) Whether the plaintiff is entitled to decree of defamation against the defendant, as prayed for? OPP.
iv) Relief PLAINTIFF EVIDENCE
6. In order to prove its case, the plaintiff examined PW-1 Sh. Jyotirmay Pandey and he tendered his evidence by way of affidavit which is Ex. PW1/A and tendered the following documents:
Sr. No. Documents Exhibited as
CS No. 141/2020
M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 5 of 20
1 Copy of authorization letter dated Ex.PW1/1
05.01.2015
2 Print out of offer letter Ex.PW1/2
3 Copy of employee non-disclosure Ex.PW1/3 (OSR)
agreement
4 Print of email dated 19.12.2019 Ex.PW1/4 (colly.)
5. Legal notice dated 27.12.2019 Ex.PW1/5
This witness was cross-examined by Ld. Counsel for defendant. Thereafter, the plaintiff evidence was closed.
DEFENCE EVIDENCE
7. In defence, the defendant examined himself as DW-1. He tendered his evidence by way of affidavit as Ex. DW-1/A. The witness tendered in evidence:
Sr. No. Document Exhibited as
1 Print out of whatsapp chat affirming Ex. DW-1/1
F&F settlement
2 Print out of email dated 27.04.2020 Ex. DW-1/2
However, they were objected to on being documents which were not filed alongwith the written statement. Yet, no steps were taken to bring the documents on record and hence, they are not relied upon. He was duly cross-examined.
FINAL ARGUMENTS CS No. 141/2020 M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 6 of 20
8. Final arguments have been advanced by Sh. Vishvender Verma, Ld. Counsel on behalf of the plaintiff and Sh. Suryansh Vashishth, Ld. Counsel on behalf of the defendant.
REASONING AND APPRECIATION OF MATERIAL ON RECORD
9. The Court has considered the submissions and material on record.
ISSUEWISE FINDINGS A) Whether the plaintiff is entitled to a decree of declaration to declare the defendant is bound by the terms and conditions of non disclosure agreement dated 28.09.2015, as prayed for ? OPP. (Issue no.i)
10. The onus to prove this issue was upon the plaintiff.
10.1 No arguments have been advanced on this issue.
10.2 An objection has been raised on behalf of the defendant qua the NDA being a void agreement in view of the Section 27 of The Contract Act.
10.3 Section 27 of the Contract Act provides as under:
'....Agreement in restraint of trade, void.--Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. Exception 1.--Saving of agreement not to carry on business of which good-will is sold.--One who sells the CS No. 141/2020 M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 7 of 20 good-will of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer, or any person deriving title to the good-will from him, carries on a like business therein, provided that such limits appear to the Court reasonable, regard being had to the nature of the business.' 10.4 It is no longer res integra that with the codification of Contract Act, there is no distinction between a general or partial restraint, qualified or unqualified restraint and even reasonable restraint. Any particular restriction or limitation will amount to a restraint which would be void to that extent under the provision of this section. The onus is upon the employer who seeks enforcement of such a covenant to show that it is in the interest of parties.
10.5 Here, it is apposite to refer to Navigators Logistics Ltd. vs. Kashif Qureshi1 where the Delhi High Court has held as under:
'....49. That brings me to the last limb of the claim of the plaintiff for permanent injunction and / or for damages i.e. for breach of clause claimed in the Employment Contract whereunder the defendants no.1 to 8 had agreed not to compete with the plaintiff for a period of one year after leaving the employment of the plaintiff either by carrying on the same business themselves or by joining employment of any competitor of the plaintiff.
50. It is the case of the defendants that the said contract, even if any, is void under Section 27 of the Contract Act.
51. Section 27 of the Contract Act is as under: "27.
Agreement in restraint of trade, void. - Every agreement by which any one is restrained from exercising a lawful profession, trade or business of any kind, is to that extent void. Exception 1. - Saving of agreement not to carry on business of which goodwill is sold. - One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business, within specified local limits, so long as the buyer, or any person deriving title to the 1 2018 SCC Online Del 11321: (2018) 254 DLT 307 CS No. 141/2020 M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 8 of 20 goodwill from him, carries on a like business therein, provided that such limits appear to the Court reasonable, regard being had to the nature of the business."
52. The interpretation of Section 27 of the Contract Act is not res integra.
53. A two Judge Bench of the Supreme Court, as far back as in Niranjan Shankar Golikari Vs. Century Spinning & Manufacturing Co. Ltd. AIR 1967 SC 1098 was concerned with a suit for injunction to restrain the employee, who had agreed to serve the employer for a fixed period, from during the said period, even after ceasing to be the employee of the plaintiff, joining employment of a competitor of the plaintiff. It was unanimously held that considerations against restrictive covenants are different in cases where the restriction is to apply during the period after the termination of the contract, than those in cases where it is to operate during the period of contract of employment. In the facts of that case, it was found that the employee was privy to the special process invented / adopted by the plaintiff and of which the employee was trained and had acquired knowledge. The employee who had left employment prior to the contracted period was thus restrained from joining employment of a competitor for the remaining period for which he had contracted with the plaintiff in that case.
54. A three Judge Bench of the Supreme Court in Superintendence Company of India (P) Ltd. Vs. Krishan Murgai 1981 2 SCC 246 was concerned with a claim for injunction post cessation of employment. It was held by two of the Judges on an interpretation of the restrictive clause in the Employment Contract, that the same was to apply only when the employee on his / her volition left the employment and not when the employer terminated the employment. The third Hon'ble Judge held that even if the restrictive covenant was to include cessation of employment at the volition of the employee, there could be no post-employment restriction under Section 27 of the Act.
55. A subsequent two Judge Bench of the Supreme Court in Percept D'Mark (India) (P) Ltd. Vs. Zaheer Khan (2006) 4 SCC 227 refused enforcement of a post-employment restriction on the ground of same being barred by Section 27 of the Act.' 10.6 Therefore, the issue is decided against the plaintiff.
CS No. 141/2020M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 9 of 20 B) Whether the plaintiff is entitled to permanent and mandatory injunction thereby restraining the defendant and their agents etc. from using/ sharing the information and commercially valuable trade secrets of the plaintiff, as prayed for? OPP (Issue no.ii)
11. The onus to prove this issue was upon the plaintiff.
11.1 It has been argued on behalf of the plaintiff that the defendant has breached clauses 2, 5 & 6 of the NDA (Ex. PW-1/3) as is evident from his cross-examination that on resigning from the plaintiff company, he joined a competitor and that client of the plaintiff namely, Zomato was introduced by him to IM Creative Communications Pvt. Ltd. which he subsequently joined.
11.2 Per contra, by way of written submissions, the acts of the plaintiff have been labelled as malacious, detrimental to the interest of its workers and NDA (Ex PW-1/3) is brushed aside as concocted. It is also stated that the plaintiff has made a mechanical allegation that its client opted for the services of the competitive of the plaintiff at the behest of the defendant.
11.3 NDA (Ex. PW-1/3) provides as under
'...2. Non-disclosure of Trade Secrets Employee shall keep Company's Confidential Information, whether or not prepared or developed by Employee, in the strictest confidence. Employee will not disclose such information to anyone outside Company without Company's prior written consent. Nor will Employee make use of any Confidential Information for Employee's own purpose or the benefit of anyone other than Company.
However, Employee shall have no obligation to treat as confidential any information which:CS No. 141/2020
M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 10 of 20
(a) was in Employee's possession or known to Employee, without an obligation to keep it confidential, before such information was disclosed to Employee by Company.
(b) is o becomes public knowledge through a source other than Employee and through no fault of Employee: or
(c) is or becomes lawfully available to Employee from a source other than Company.
.........
5. Confidentiality Obligation Survives Employment Employee's obligation to maintain the confidentiality and security of Confidential Information remains even after Employee's employment with Company ends and continues for so long as such Confidential Information remains a trade secret.
6. Undertaking by Employees Employee shall strictly adhere and undertake that they will not approach the existing customers of the Company after their separation from the Company for a period of 3 years from the date of their separation from the Company. Existing customer includes the customer or business generated by the outgoing employee.' 11.4 Once again, this Court finds it relevant to refer to Navigators Logistics Ltd. (Supra) where the Delhi High Court has further held as under:
'...20. It is the case of the defendants that there can be no copyright in customer database, accounts information, airway drawings, airway bills templates etc.
21. The plaintiff, save for the aforesaid description, has not given any other description of the works in which it claims copyright and no document also has been filed in this regard.
As per the reports of the commissions issued at the instance of the plaintiff also, what has been found in possession of the defendants is the list of customers and clients serviced by the plaintiff and their contact persons. Though the Commissioners have reported also finding e-mails/skype chats inter se the defendants while working with the plaintiff and/or e-mails between the defendants and present employee of the plaintiff, but there can possibly be no copyright therein.
22. What is thus for adjudication is, whether there can be any CS No. 141/2020 M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 11 of 20 copyright in a list of customers/clients with their contact persons/numbers maintained by the service provider. Though the plaintiff has in the plaint generally pleaded database pertaining to, running of business accounts information, airway drawings, airway bills templates, plans, reports, taxes and other financial information, process, financial/administrative and/or organizational information as well as transactions based templates and internal notings and trade secrets of the plaintiff company, but the said words/phrases, though high-sounding, are vague and do not constitute a plea in law within the meaning of Order VI Rules 2,4,9 and Order VII Rules 1(e) and 7 of the Code of Civil Procedure, 1908 (CPC). In this context, it may be also mentioned that using such high-sounding/phrases which in fact have no content or meaning, a large number of suits are filed in this Court against the ex-employees and it has often been found that interim injunctions issued restraining the ex- employees from divulging the same to any other person remain unenforceable in the absence of particulars and with applications under Order XXXIX Rule 2A of the CPC being filed with respect to all communications made by such employees with others and with it being absolutely impossible for the Court to determine whether the communication is in violation of the interim order. It is for this reason only that Section 41(f) of the Specific Relief Act, 1963, and principles whereof are applicable to temporary injunctions also, prohibits grant of injunction to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance. Similarly, without specifying the information, disclosure of which is sought to be restrained, an injunction cannot be granted; rather I have wondered the purport of the interim order dated 3rd June, 2016 in this suit, restraining the defendants from utilizing, exploiting, copying, transmitting, publishing or releasing any confidential information and trade secrets of the plaintiff to any entity for any purpose whatsoever, without specifying as to which is that confidential information and trade secret. It is for this reason that I have hereinabove observed that what is for adjudication is, whether list of customers/clients with their contact numbers prepared/drawn up by a service provider can be said to be a work in which such service provider can have copyright.' 11.5 Further, it has also been held as under:
CS No. 141/2020M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 12 of 20 '...41. On facts as pleaded in plaint it appeared that there can be no confidentiality about such a list. Just like customers/clients of an Advocate practicing in the field of acquisition of land and determination of compensation therefor can comprise only of those whose land has been acquired and whose particulars are contained in the acquisition notification and/or award pronounced by the Land Acquisition Collector, similarly the list of customers/clients of the plaintiff, carrying on business in the field of logistic and freight forwarding, can only comprise of businesses/industry requiring carriage of goods and material and none else. Names and contact addresses of such businesses are easily available in public domain. Any competitor of the plaintiff worth its salt would also know of such businesses/industry and be free to market his services to them, even if presently employing the service of the plaintiff. I am thus unable to fathom the confidentiality therein and during the hearing also repeatedly enquired about the same and also enquired about the particulars of other works/databases and in which also copyright and confidentiality was claimed. No answer was forthcoming. Every customer list cannot qualify as confidential information or a trade secret unless the confidentiality around such a list is of economic value/business value/commercial value. A thought also crossed my mind, whether not any employee of the plaintiff, dealing with the customers/clients of the plaintiff on behalf of the plaintiff, would have knowledge of the said customers/clients and their contact address even in the absence of a list and how could such an employee, when joining the employment of a competitor, be prevented from marketing the services of the competitor to the employees/clients at the address on which he was earlier servicing them under employment of the former employer and whether not it would amount to restraint of trade.
42. In fact today, trade/business directories are available of each trade/business and wherefrom names and addresses of all in a particular trade/business/industry can be known.
43. In Star India Pvt. Ltd. Vs. Laxmiraj Seetharam Nayak 2003 SCC OnLine Bom 27 it was held that everyone in any employment for some period would know certain facts and would get to know some information without any special effort; all such persons cannot be said to know trade secrets or confidential information and that every opinion or general knowledge of facts cannot be labelled as trade secrets or CS No. 141/2020 M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 13 of 20 confidential information. It was yet further held that if such items are called as trade secrets, or secret, would lose its meaning and significance. It was held that the basic nature of the business dealings of the plaintiff in that case with its advertisers would be openly known and cannot be called a trade secret or a confidential information; the rates of the advertisements are within the public domain and every businessman generally knows the rates of his rivals; the concerned people know the rates of the advertisements;
unless they are told the rates and other conditions of the advertisements, no business transaction can be done; such matters are not even open secrets. Similarly it was held that fixation of rates etc. depends on a number of factors including the popularity, in that case of T.V. serial and the time-slots of the display of such T.V. serials and mere use of the words 'strategies', 'policy decisions' or 'crucial policies' repeatedly in all the items does not acquire the position or character of secrecy. It was held that there was nothing on record from which it could be inferred that the defendant had come to know any trade secrets or confidential information concerning the plaintiff company and its business especially when the trade secrets and the confidential information were not even spelled out.
44. This Court also, in Ambiance India (Private) Ltd. Vs. Naveen Jain 2005 SCC OnLine Del 367 held that written day to day affairs of employment which are in the knowledge of many and are commonly known to others cannot be called trade secrets. It was further held that trade secret can be a formulae, technical know-how or a peculiar mode or method of business adopted by an employer which is unknown to others. It was yet further held that in a business house, the employees discharging their duties come across so many matters but all these matters are not trade secrets or confidential matters or formulae, the divulgence of which may be injurious to the employer and if an employee on account of employment has learnt some business acumen or ways of dealing with the customers or clients, the same do not constitute trade secret or confidential information, divulgence or use of which should be prohibited.
45. This Court again in American Express Bank Ltd. Vs. Priya Puri 2006 SCC OnLine Del 638 held that the plaintiff in that case, in the garb of confidentiality, was trying to contend that that once the customer of the plaintiff, always a customer of the plaintiff. It was further held that the plaintiff, a bank in that case, could not restrain its competitor banks CS No. 141/2020 M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 14 of 20 from dealing with the customers of the plaintiff bank on the ground that the plaintiff bank maintained written record of its customers and their financial portfolios which had been acquired by the competitor bank and so the competitor bank should be restrained even to contact those customers. It was reasoned, that if the competitor bank without acquiring any information as to with whom a particular person or company is banking, can approach him and canvass about themselves, even after acquiring information that a particular person of company is banking with a bank is still entitled to approach him and canvass about themselves and it is for the customers to decide with which bank to bank. It was further held that creating a database of the clients/customers and then claiming confidentiality about it, will not permit creation of a monopoly about such customers. It was yet further reasoned that without impleading the customers in the suit, the competitor could not be restrained from dealing with the customers. It was thus held that details of customers are not trade secrets or property. The argument, on the basis of copyright therein, was also negatived.
46. The High Court of Bombay again in Bombay Dyeing and Manufacturing Co. Ltd. Vs. Mehar Karan Singh 2010 SCC OnLine Bom 1243, relying on the judgments of the United States of America, Court of Appeals, Tenth Circuit in Rivendell Forest Products Ltd. Vs. Georgia Pacific Corporation and Timothy L. Cornwell 31 USPQ 2d1472 and Kodekay Electronics Inc. Vs. Mechanex Corp. 486 F. 2d 449 (10th Cir. 1973) and held that something which is known outside the business or to those inside the business i.e. the employees and for guarding which no steps have been taken and for developing which no effort or money has been extended, cannot be a trade secret. Accordingly, it was held that information relating to 'strategic business plans', 'product mix', 'square footage of construction', 'capital expenditure' or 'revenue budgets' could not be claimed to be of any confidential nature which no other competitor would know. Relying on Star India Private Limited supra it was held that a salesman leaving a company and heart surgeon leaving a hospital cannot be prevented from negotiating with the customers or performing a surgery on the premise that they acquired the skill by experience and those skills can be carried with the employee. It was yet further held that though the defendant in that case, on amassing information and knowledge with regard to the plaintiff's plan of operation, could not be injuncted from disclosing those plans to the CS No. 141/2020 M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 15 of 20 competitor if he carried them in his head and the competitor in the market, could not be taken to be driven by the defendant's disclosure alone.' 11.6 It has not been pleaded and explained as to what the confidential information are and it is merely stated that they are 'information and material commercially valuable to the company and not generally known or readily ascertainable in the industry.' Therefore, the defendant is not entitled to the discretionary relief.
11.7 Hence, the issue is decided in favour of the plaintiff.
C) Whether the plaintiff is entitled to decree of defamation against the defendant, as prayed for? OPP. (Issue no.iii) However, as the issue is not clear, the same on the basis of the prayers is amended as under (in exercise of power under XIV Rule 5 CPC) :
"Whether plaintiff is entitled to a decree of Rs.1 crore as damages for defamation with interest @ 24% per annum? OPP"
12. The onus to prove this issue was upon the plaintiff.
12.1 Basing its claim upon email Ex.PW1/4 (Colly.), it has been argued on behalf of plaintiff that the defendant has defamed the plaintiff company and its directors. Thereafter, qua the quantification of damages, this Court has been led through the affidavit of the defendant which is Ex.DW1/A to show that the business of the plaintiff company admittedly is substantial and during cross- examination, the defendant also admitted that he had caused a loss of an important client Zomato, who was having a business of Rs.4.5 CS No. 141/2020 M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 16 of 20 crores with the plaintiff in the year 2015-2016 and so, the plaintiff has been able to establish a damage of its reputation atleast to the tune of Rs.1crore.
12.2 Per contra, even though, the email has not been denied, it has been argued that the defendant has been able to establish that the email was not without a reasonable cause (as the full and final settlement of the defendant had been withheld ) and the act was not malicious.
12.3 In Pandey Surendra Nath Sinha And ... vs Bageshwari Pd. 2, it has been held as under:
"...19. We are here concerned with an action for libel. In an action for libel the plaintiff should prove that the statement complained of (1) refers to him; (2) is in writing, (3) is defamatory, and, (4) was published by the defendant to a third person or persons. A man publishes defamatory statements at his peril. An action for libel, therefore, lies on mere proof of publication, even though the plaintiff does not prove that he has sutiered any special damage, that is, the loss of some definite temporal advantage.
20. On proof of the above facts, the plaintiff makes out his case, and, then it is for the defendant to establish one of the defences recognised by law.
21. It may, however, be mentioned that, although both in England and in India, it is unnecessary for the plaintiff to prove the following facts, it has been customary to allege them in the plaintiff's pleading; (a) Falsity of the statement. It is for the defendant to prove that it is true;
(b) Malice of the defendant. The plaintiff has to prove malice to rebut the defence of privilege or fair comment, but otherwise it is not necessary in order to make out the plaintiffs case. The allegation of malice means nothing more than that the defendant published a defamatory statement without lawful excuse; and (c) damage to 2 AIR 1961 Pat 164 CS No. 141/2020 M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 17 of 20 plaintiff's reputation. The law presumes it from the defamatory tendency of the words. The above points the plaintiff need not prove.
22. Besides the general defences applicable to all actions in torts, such as, limitation, consent, accord and satisfaction, previous judgment, etc., the three special defences available in an action for defamation, under the common law, are (1) justification (or truth), or (2) privilege, absolute or qualified, and, (3) fair comment. In England there is a statutory defence in actions for libel against newspapers, viz., apology.
23. We are here concerned with the first two defences, that is, Justification and Privilege.
24. The defence of justification is the plea of truth of the words or statements published by the defendant. The form of the plea is that "the words complained of are true in substance and in tact". Truth is a defence in a Civil action, "For the law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess." No action, therefore, will lie for the publication of a defamatory statement if the defendant pleads and proves that it is true.
This is so even though the defendant is proved to have been actuated by malicious and improper motives. In a civil action the defendant has to plead and prove the truth of the defamatory words, and not merely his belief in their truth, though honest. Therefore, if the words, or the statements, complained of, are true, he escapes liability, however improper his motives may have been. If, however, the word or statement turns out not to be true, he is liable, however honestly and carefully he may have acted and however inevitable his mistake, the liability is almost absolute.
25. 'Privilege' is used here in the sense of an excuse or immunity conferred by law on statements or communications made on certain occasions called 'privileged occasions'. A privileged statement, therefore, is one which is made in such circumstances as to be exempt from the rule that a man attacks the reputation of another at his peril, that is, at his own risk. In other words privilege includes those exceptional cases in which it is not enough, in order to create liability, to prove that the defendant has published a false and defamatory statement.
CS No. 141/2020M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 18 of 20 The defendant being privileged, is not responsible for this alone; he is either wholly free from responsibility or is liable only on proof that he was animated by a malicious motive, and not by any genuine intention to use his privilege for the purpose for which the law gave it to him,"
12.4 PW1 during cross-examination has stated that the defendant is not entitled to any full and final settlement dues, however, was unable to substantiate the same through any written communication to the plaintiff. He has also confirmed during his cross-examination that the defendant during his tenure brought three or four big brand clients to the plaintiff during his employment and was promoted on the basis of his performance. On the other hand, no cross examination has been carried out to controvert the testimony of the defendant as DW1 that full and final settlement is due to him and he was duped of the same. Hence, the falsity of the allegation that the plaintiff did not owe full and final settlement to the defendant could not be established. Further, there is no cross-examination also qua the incentive deduction having been done by the plaintiff without any justification. Hence, the mail is a ranting of a disgruntled employee who had been wronged. However, still even though, the allegations of defamation have not been duly proved, the defendant also should have refrained from shooting the mail (Ex.PW1/4 (colly.)) with copies to other employees and should have resorted to the appropriate legal recourse.
12.5 In view of the above, issue is decided against the plaintiff.CS No. 141/2020
M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 19 of 20 RELIEF
13. In view of the findings and observations herein above, the suit of the plaintiff is dismissed. No order as to cost.
14. Decree Sheet be prepared, accordingly.
15. File be consigned to records.
Pronounced in open Court (Vijeta Singh Rawat) on 29.08.2023 Additional District Judge-01, New Delhi District, Patiala House Courts, New Delhi CS No. 141/2020 M/s. I Broad 7 Communication P Ltd. vs. Gaurav Kumar Patel Pages 20 of 20