Gujarat High Court
Housing Development Finance ... vs Sureshchandra V Parekh & on 20 March, 2014
Author: S.G.Shah
Bench: S.G.Shah
C/AO/5/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL FROM ORDER NO. 5 of 2014
With
CIVIL APPLICATION NO. 321 of 2014
In
APPEAL FROM ORDER NO. 5 of 2014
With
CIVIL APPLICATION NO. 1219 of 2014
In
APPEAL FROM ORDER NO. 5 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
======================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
====================================================== HOUSING DEVELOPMENT FINANCE CORPORATION LTD &
3....Appellant(s) Versus SURESHCHANDRA V PAREKH & 1....Respondent(s) Page 1 of 99 C/AO/5/2014 CAV JUDGMENT ====================================================== Appearance:
MR MIHIR JOSHI, SR. COUNSEL with MR UD SHUKLA with MR KUNAL VAJANI with MR JAY KANSARA with MR KUNAL VAISHNAV with MR PRIYANK LODHA for M/S WADIAGHANDY & CO, ADVOCATE (S) for the Appellant(s) No. 1 - 4 PARTY-IN-PERSON, ADVOCATE for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 1 - 2 ====================================================== CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 20/03/2014 CAV COMMON JUDGMENT
1. It is necessary to remember that law in its ideal, is the statement of principle of right in mandatory form by competent authority with adequate penalties for disobedience and that law is a guideline for the conductor and art to recognize what is right and equitable. The maxims of law are thus: to live honestly, to hurt no man and to give everyone his due, which shall include respect with reference to his personality, i.e., abstain from willful injury, to respect the property of others and to use due diligence to avoid causing harm to others.
2. The appellants are original plaintiffs whereas respondents are original defendants and they are referred in the same capacity in this judgment also.
3. Plaintiff no. 1 is a public limited company whereas no. 2 Page 2 of 99 C/AO/5/2014 CAV JUDGMENT to 4 are its office bearers whereas defendant no. 1 and 2 are individuals holding equity shares of the plaintiff no.1 -
company.
4. The plaintiffs have filed the suit mainly to restrain the defendants to continue their activities to defame plaintiffs before different authorities in different manner.
5. Reliefs prayed in the suit cannot be granted as such, therefore, it would be appropriate to refer the prayers in verbatim which reads as under:
"(a) that this Hon'ble Court be pleased to pass an order and decree of mandatory and permanent injunction restraining the Defendants, their servants, agents or assigns or any other persons(s) claiming by through or under them, in any manner whatsoever either orally and/or in writing, to publish or cause to be published any material and/or address communication to any one whatsoever and/or file any fresh litigation/complaint, containing any direct or indirect reference to the Plaintiff(s) and /or any material, which would defame or tend to defame the Plaintiff(s) and /or their officers, employees, servants, agents or authorised representatives and/or is malicious/injurious falsehood with regard to the Plaintiff(s) and/or their officers, employees, servants, agents or authorised representatives and/or repeating/reprinting the statements published or caused to be published in the past either orally or in writing, including the statements contained in the documents annexed to and/or referred to and relied upon in the Plaint above;
(b) That this Hon'ble Court be pleased to pass an order and decree of mandatory and permanent injunction restraining the Defendants, their servants, agents or assigns or any other person/s claiming by, through or under them in any manner Page 3 of 99 C/AO/5/2014 CAV JUDGMENT whatsoever from committing and/or causing to commit any nuisance or other wrongful acts affecting or likely to affect the public including the plaintiff(s) and/or officers, employees, servants, agents or authorized representatives.
(c) That this Hon'ble Court be pleased to pass an order and decree for an amount of Rs.10, 00,00,000/- [Rupees Ten Crores only], in favor of the plaintiff(s), jointly and severally against the Defendants as damages [including exemplary damages] with interest @ 18% p.a. From the date of filing this suit till the date of realization of loss of reputation, trauma, public nuisance, harassment, humiliation and the costs and expenses incurred/suffered by the plaintiff(s);
(d) that pending the hearing and disposal of the captioned Suit this Hon'ble Court be pleased to pass an order of temporary injunction restraining the Defendants, their servants, agents or assigns or any other person(s) claiming by through or under them, in any manner whatsoever either orally and/or in writing, to publish or cause to be published any material and/or address communication to any one whatsoever and/or file any fresh litigation/complaint, containing any direct or indirect reference to the Plaintiff(s) and/or any material, which would defame or tend to defame the Plaintiff(s) and/or their officers, employees, servants, agents or authorised representatives and/or is malicious/injurious falsehood with regard to the Plaintiff(s) and/or their officers, employees, servants, agents or authorised representatives and/or repeating/ reprinting the statements published or caused to be published in the past either orally or in writing, including the statements contained in the documents annexed to and/or referred to and relied upon in the Plaint above;
(e) that pending the hearing and disposal of the captioned Suit this Hon'ble Court be pleased to pass an order of temporary injunction restraining the Defendants, their servants, agents or assigns or any other person/s claiming by through or under Page 4 of 99 C/AO/5/2014 CAV JUDGMENT them in any manner whatsoever from committing and/or causing to commit any nuisance or other wrongful acts affecting or likely to affect the public including the Plaintiff(s) and/or their officers, employees, servants, agents or authorised representatives.
(f) For ad-interim and interim reliefs in terms of prayer clauses (d) and (e) hereto,
(g) for the costs of the suit, and
(h) for such further and other reliefs as the nature and circumstances of the case may require."
6. With the plaint, the plaintiffs have filed an application for interim relief wherein plaintiffs have prayed for interim relief similar to prayer (d) and (e) quoted herein above.
7. Since the trial court has, by impugned judgment and order dated 30/10/2013, dismissed such application and vacated the, interim relief granted on 06/05/2013, plaintiffs have preferred this appeal for similar relief in terms of prayer clause (d) and (e) quoted herein above.
8. At the outset, it is being confirmed that plaintiffs are not entitled to any such relief which restrict the defendants to file any fresh litigation or complain in any manner whatsoever and therefore, plaintiffs has agreed to let go such relief at the time of granting interim relief at the time of admission. Therefore, this appeal is being heard on its merits considering that plaintiffs are not claiming an order of Page 5 of 99 C/AO/5/2014 CAV JUDGMENT injunction so as to restrain the defendants and his agents claiming through him in any manner whatsoever to file any fresh litigation or complaint in any manner against the plaintiffs. However Ld Sr Counsel Mr Mihir Joshi has, after arguments of both sides, tried to convince the Court that in given circumstances the Court can grant even such relief.
9. If we peruse the factual details in brief as emerges from the lengthy pleadings and voluminous record, it transpires that:
(1) Defendants are holding few equity shares of Plaintiff no. 1 Company, (2) Plaintiff no. 1 Company has offered preferential share to the existing shareholders, (3) Such offer was though against payment it is in the form of benefit by the company and offer in such a nature that any shareholder holding one to ten shares will get hundred preferential shares, (4) It seems that since dependents were having few equity shares in their joint name, on getting knowledge of offer for preferential share, they tried to transfer their equity shares singularly in different names so as to get more preferential shares due to holding of single equity share by each of such transferee, Page 6 of 99 C/AO/5/2014 CAV JUDGMENT (5) Such exercise is required to be recollected here with specific details in as much as such transfer was seems to be, if not fraudulent then in any case, an attempt to get disadvantage of the procedure and system of offering preferential share by the plaintiff no. 1.
(6) Even if such irregularity cannot be treated as illegality or immorality, such transfer is practically not permitted under the law since the transfer was sought by the defendants in the name of same person, i.e. the seller and purchaser are same, but disclosing their identity in different manner so as to make a show that they are different persons -
individuals.
(7) Details of such transfer can be gathered from the judicial order in Criminal Misc. Application No.7690 of 2000 with Criminal Misc. Application No.860 of 2003 wherein on 28/08/2008 while quashing the complaint against the plaintiff(s) this Hon'ble Court has specifically observed as under:
3.0 It is the case of the applicants that, originally, seven shares were held in the name of Mrs. Neelaben S. Parekh, jointly with Mr. Sureshchandra V. Parekh of HDFC under Folio No. N 41567. In and around 1992, said Mrs. Neelaben S. Parekh jointly with Mr. Sureshchandra V. Parekh, respondent No.1 herein, sought transfer of the said seven shares under the above folio number in the name of Mrs. Neelaben S. Parekh using seven transfer deeds. Each of the transfer deeds was accompanied by one share certificate for one Page 7 of 99 C/AO/5/2014 CAV JUDGMENT share and the name of Mrs. Neelaben S. Parekh was written in different combinations as follows:
Certificate No. of
Transferee
No. shares
399340 1 Nila Sureshbhai
399335 1 N.S. Parekh
399336 1 Nila S. Parekh
399337 1 Nilaben Parekh
399338 1 Nilaben Parekh
399339 1 Nilaben Suresh
399341 1 Nilaben S. Parekh
3.1 It is the further case of the applicants that, initially, it came to be lodged on different folio numbers, but on realizing that all of the same belong to one entity, they were thereafter placed under single Folio No. 051110 and, accordingly, the transferee Mrs. Neelaben S. Parekh now holds seven shares under Folio No. N 051110 and, accordingly, Dividend Warrants were issued by the company from 19921993 and 19931994. It is further case of the applicants that on 20.6.1994 it was decided by the Company that preferential share allotment of HDFC Bank Limited was to be made on the basis of shares held in HDFC Limited as on 20.6.1994 and to be allotted to the shareholders of HDFC Limited in the proportion that, if 110 shares are held in HDFC Limited, 100 shares of HDFC Bank to be offered. In view of the above, the wife of respondent No.1 herein got Folio No. N 051110 offering 100 shares against seven shares held. However, respondent No.1 is claiming that, since seven shares were held in different folios, he ought to have been offered 700 shares held by his wife, since allotment of preferential shares of HDFC Bank shares was not made as claimed by respondent No.1.
(8) However, when plaintiffs no. 1 has noticed such fact that defendants wants to transfer the share jointly Page 8 of 99 C/AO/5/2014 CAV JUDGMENT held by them in the name of defendant no. 2 showing her name in a different manner as listed herein above so as to have a different folio number and thereby creating their entitlement for 800 preferential shares. Otherwise being the holder of eight equity shares, they are only entitled to 100 preferential shares. Therefore, defendants have tried to transfer the shares in their own name but showing the name differently so as to have a different folio number of different types of name and thereby to get more 700 preferential shares.
(9) Therefore, prima facie the attempt of the defendants, even if not barred under any law, is certainly immoral and technically illegal and irregular inasmuch as there cannot be a transfer of equity shares by a person in his or her own name, simply disclosing his/her name differently. Though no explanation or advice is necessary in favour of the defendants, it cannot be ignored that any person can transfer any share in a combination of different joint holders, keeping him/her as one of the joint holder so as to have a different folio number to get maximum preferential shares. However, in that case, there must be actual different persons in existence. Whereas in the present case, it is not disputed that all seven names disclosed in the table in the pervious para are the same person i.e. defendant no.2. Thereby there is no dispute to the fact that the defendant no. 2 has tried to transfer seven equity shares in her own name as if there are seven other Page 9 of 99 C/AO/5/2014 CAV JUDGMENT different persons of different names. To that extent, such transfer can certainly be termed as illegal and cannot be permitted. In other words, it is clear and certain that this is nothing but impersonation by defendant no. 2 as if there are seven persons, though there is only one.
(10) When plaintiffs have known about such illegal request for transfer, in their internal management they have consolidated all such transfers and practically it was not affected as proposed resulting in non offer of 700 preferential shares to the defendants. Thereby defendant should get only 100 preferential shares and that position is the cause of quarrel and dispute between the parties.
(11) Considering the internal activities of the plaintiffs to consolidate all the shares in question in same folio number and there by offering only 100 preferential shares as a fraud and criminal breach of trust and forgery in endorsing the same folio number in transfer from by plaintiff no.1, defendants have initiates several litigations under different provisions complaining that the plaintiffs have committed forgery, fraud, misappropriation and thereby scam in not allotting preferential share not only to the defendants but also to the similarly situated share holders. It is also alleged that even in management of the plaintiff no. 1 company rest of the plaintiffs have committed several fraud, misappropriation, Page 10 of 99 C/AO/5/2014 CAV JUDGMENT fraud and scam. At present we are not concerned with the nature and details of such scam or fraud committed by any one. However, it seems that with a view to prejudice the judicial process, defendant had repeatedly term such fraud and scam for several thousand crores rupees.
(12) The defendants filed complaints before the Consumer Dispute Redress Forum; Ahmedabad being Complaints nos.1260 of 1994 and 1261 of 1994 claiming that defendant no.2 was entitled to 700 additional shares. However, such complaint was dismissed by an order dated 15/07/1997 holding that complainant i.e. present defendant no. 2 is not entitled to get seven application forms each for 100 shares and that complaint is without merits. A copy of such judgment is produced on record.
(13) Appeal Nos.445 of 1997 and 446 of 1997 against such order of dismissal was also dismissed by order dated 19/12/2001 by the Consumer Dispute Redressal Commission, Ahmedabad.
(14) Defendants have also filed complaint no. 29 1999 before the Consumer Dispute Redressal Commission against different authorities with several prayers which was dismissed by order dated 24/03/1999 in following manner:
"The complainant Sureshchandra B. Parekh Page 11 of 99 C/AO/5/2014 CAV JUDGMENT has filed this complaint against nine opponents, and neither head nor tail can be made out of the contents of this complaint and all the prayers are vague and fantastic. They would not fall under the purview of consumer protection act."
(15) Defendant no. 1 has filed a Civil Suit no. 3235 of 1998 before the City Civil Court, Ahmedabad seeking injunction against the annual general meeting of the plaintiff no. 1 company proposed to be held on 10/07/1998. Such suit was also dismissed vide order dated 30/08/2000.
(16) First Appeal No.955 of 2001 challenging the aforesaid order was also dismissed by this High Court on 13/3/2002 in following words.
"It is no doubt true that plaintiff-party-in-
person has alleged malafides but no particulars of malafides have been shown by him and therefore, in the absence of any particulars no malafides can be presumed in this behalf.
(17) The defendants seeking injunction against 22nd annual general meeting to be held on 9/7/1999, filed another Civil Suit No.2187 of 1999. However, such suit was also dismissed for non prosecution on 06/11/2011 wherein interim relief was also refused Page 12 of 99 C/AO/5/2014 CAV JUDGMENT on 06/07/1999 observing that the ultimate goal of the defendants is to restrain the management of the company from holding annual general meeting without the proof that what and how valuable rights of the defendants are going to be protected if annual general meeting is not permitted to be held, since defendant has failed to explain the necessity for granting interim relief.
(18) Above order was challenged in Appeal From Order No.392 of 1999. However, it was also dismissed as infructuous on 24/01/2000.
(19) Another civil suit being Civil Suit No.2554 of 200 was filed by defendants for restraining the plaintiffs from holding an annual general meeting was filed wherein while dismissing the interim application, the trial court has observed as under:
"I am of the opinion that, the plaintiff has transgressed most of the limits while initiating the present litigation.... The relief sought for vide the present Notice of Motion in my opinion, are vague, incapable of being granted, unsupported by any documentary evidence and the extensive and voluminous documentary evidence, in my opinion, has absolute no bearing on the present Suit as well as the notice of the motion. The suit appears to be an exercise where the object is to restrain the defendant No.1 from holding its Annual General Meeting ... the present litigation is nothing but another in an unending series of litigations whereby the plaintiff seeks to restrain the holding of the Annual General Meeting of the defendant Company."
(20) Above order was also challenged in Appeal From Page 13 of 99 C/AO/5/2014 CAV JUDGMENT Order No.3429 of 2000 which was also dismissed on 22/03/2001 when this High Court has simply said that there is no justification in granting the relief as prayed for merely because the defendants have some dispute with the company.
(21) One another Civil Suit NO.3629 of 2000 was preferred again to restrain from holding an annual general meeting but now joining several other authorities as additional defendants with several diverse reliefs. Interim relief was refused by the civil court by order dated 19/09/2000 which reads as under:
"The Notice of Motion, in my opinion, is vague and does not give any particulars, nor does it make out a case as would entitle the plaintiffs to the reliefs sought for and the reliefs sought for in my opinion, themselves are having no clarity or enforcement and on this count alone, without going into the facts and circumstances herein, I am of the opinion that, no relief can be granted on the plaintiffs' Notice of Motion."
(22) Defendants have also preferred SCA Nos.7564 of 2009 and 8163 of 2009 alleging that there is fraud of Rs.3825 crores by the company and its directors which is not investigated and that balance sheet for the year 2007-08 has been altered with the relief to the same extent that the company should not hold an annual general meeting till they disclose the details of fraud and to impose penalties upon the company and its directors. Both these petitions were heard together and vide order dated 17/09/2009 this Court Page 14 of 99 C/AO/5/2014 CAV JUDGMENT has permitted the withdrawal of petitions with following observations:
"3. Taking into consideration that the petitioners are appearing in party in person, represented by petitioner no. 1, the Court granted indulgence and that indulgence is then found to be misused by the petitioners. Today, when the matter is taken up for hearing, learned Advocate Mr. Mehta appearing for the HDFC Bank Ltd. invited the attention of the Court to an affidavit filed by the Executive Vice President, Legal & Company Secretary of respondent no. 1 company, the Court finds that the petitioner has not approached this Court with clean hands. Not only that the petitioner is abusing the process of the Court, which renders this case to be a clear case of 'Criminal Contempt of Court'. The petitioner was explained that if he intends to pursue the matters, after hearing the petitioner and after taking into consideration the contents of affidavit in reply and the submissions made by the learned Advocate for respondent - Bank, the Court will proceed to pass an order under the Contempt of Courts Act, the petitioner, at this juncture, tenders a written pursis stating that he is withdrawing both these petitions unconditionally.
4. At this juncture, it will also be relevant to refer to the affidavit in reply filed in another matter, i.e. Special Civil Application No. 8163 of 2009 by the Deputy General Manager of respondent no. 1 - Bank, wherein, in para 3.1 to 3.3, the conduct of the petitioner is exposed. The learned Senior Advocate Mr. Joshi for the respondent no. 1 - Bank also invited the attention of the Court to the contents of para 4.1, 4.2, 4.3 and paras 5, which set out the details of the proceedings initiated by this very petitioner party in person against the Bank.
5. With pains, the Court has to record that the people have gone mad for earning easy money at the share market. They have lost all sense of proportion and propriety to get the Page 15 of 99 C/AO/5/2014 CAV JUDGMENT benefits flowing from the deals in the market. This is one such illustrious example of such madness, under which the petitioners have approached this Court.
6. Taking very lenient view in the matter, of course, with reluctance, the Court accepts the pursis given by the petitioner and allow him to withdraw these petitions. The petitions are disposed of as withdrawn.
7. It is expected that the wisdom will prevail over the petitioner in pursuing the other litigations, which are filed by him against respondents in the subject matter of both these matters."
(1) In spite of withdrawal of above petitions, above order dated 17/09/2009 in both the petitions were challenged by the defendants in LPA Nos.881 and 882 of 2010. Such LPAs were dismissed by order dated 27/04/2010 in following terms:
"Apart from the fact that the writ petition alleging fraud against a private bank was not maintainable, we find that when the bank (HDFC Bank) issued notice of Seventh Annual General Meeting informed that the Bank had reserved all its right to proceed against the appellant Mr.S.B.Parekh, it is only thereafter the appellant has alleged fraud against the Bank.
Further, after hearing the appellant in person, when the learned Judge was dictating the order, the appellant filed an application for withdrawal of the case. For the above reasons, we are not inclined to entertain these appeals. Both the appeals and the Civil Applications are dismissed."
(2) Defendant also prefers the complaint being Inquiry Case No.85 of 1998 before the Metropolitan Court of Ahmedabad against the plaintiffno. 1 company and Page 16 of 99 C/AO/5/2014 CAV JUDGMENT its officer alleging that they have committed several offenses. Being aggrieved by the investigation and process against plaintiffs, plaintiffs have preferred Criminal Misc. Application No.7690 of 2000 and 860 of 2003. Since such complaint and its outcome are the basic judicial pronouncement regarding dispute between the parties and therefore, though such judgment is available as such, as a public documents its reproduction is necessary in the present order. The oral judgment reads as under, which not only disclose the entire picture clearly, but clarify the nature of the dispute:
"1. This application under Section 482 of the Code of Criminal Procedure, 1973 [for short, 'the Code'] is preferred by the applicants for quashing the process issued under Sections 406 and 114 of the Indian Penal Code by the learned Metropolitan Magistrate, Court No.18, Mirzapur, Ahmedabad, dated 13th November 2000, upon the applicant company and its Managing Director, Directors and the Secretary.
2. On 28.7.1998, respondent No.1 preferred Inquiry Case No.85 of 1998 against the applicants for the offenses punishable under Sections 420, 467, 468, 471, and 114 of the Indian Penal Code and the Court concerned passed an order dated 28.7.1998 to initiate inquiry under Section 202 of the Code. After recording statement of the complainant, on 30.12.1999, the Court directed the Investigating Officer to obtain a handwriting expert report and, by relying upon the same, on 13.11.2000, the learned Metropolitan Magistrate, Court No.18, Ahmedabad, ordered filing of an inquiry case as regular Criminal Case and for issuance of process under Sections 406 and 114 of the Indian Penal Code Page 17 of 99 C/AO/5/2014 CAV JUDGMENT only.
2.1. Thus, except an offense under Sections 406 and 114 of the Indian Penal Code, no process is issued by the concerned Metropolitan Magistrate in respect of any other offense.
3. It is the case of the applicants that, originally, seven shares were held in the name of Mrs. Neelaben S. Parekh, jointly with Mr. Sureshchandra V. Parekh of HDFC under Folio No. N 41567. In and around 1992, said Mrs. Neelaben S. Parekh jointly with Mr. Sureshchandra V. Parekh, respondent No.1 herein, sought transfer of the said seven shares under the above folio number in the name of Mrs. Neelaben S. Parekh using seven transfer deeds. Each of the transfer deeds was accompanied by one share certificate for one share and the name of Mrs. Neelaben S. Parekh was written in different combinations as follows:
Certificate No. No. of shares Transferee 399340 1 Nila Sureshbhai 399335 1 N.S. Parekh 399336 1 Nila S. Parekh 399337 1 Nilaben Parekh 399338 1 Nilaben Parekh 399339 1 Nilaben Suresh 399341 1 Nilaben S. Parekh 3.1. It is the further case of the applicants that, initially, it came to be lodged on different folio numbers, but on realizing that all of the same belong to one entity, they were thereafter placed under single Folio No. N 051110 and, accordingly, the transferee Mrs. Neelaben S. Parekh now holds seven shares under Folio No. N 051110 and, accordingly, Dividend Warrants were issued by the company from 19921993 and 19931994. It is a further case of the applicants that on 20.6.1994 it was decided by Page 18 of 99 C/AO/5/2014 CAV JUDGMENT the Company that preferential share allotment of HDFC Bank Limited was to be made on the basis of shares held in HDFC Limited as on 20.6.1994 and to be allotted to the shareholders of HDFC Limited in the proportion that, if 110 shares are held in HDFC Limited, 100 shares of HDFC Bank to be offered. In view of the above, the wife of respondent No.1 herein got Folio No. N 051110 offering 100 shares against seven shares held. However, respondent No.1 is claiming that, since seven shares were held in different folios, he ought to have been offered 700 shares held by his wife, since allotment of preferential shares of HDFC Bank shares was not made as claimed by respondent No.1.
4. In the backdrop of the above facts, various civil litigations were initiated by respondent No.1 against the Company, the details of which are as under:
[a] Consumer Complaint No.1260 of 1994 was filed by respondent No.1 and his wife before the Ahmedabad District Consumer Disputes Redressal Forum, which came to be dismissed by order dated 15.7.1997, against which, Appeal No.446 of 1997 preferred on 16.8.1997 before the Gujarat State Consumer Disputes Redressal Commission, was also rejected. At the same time, another Consumer Complaint No.1261 of 1994 filed by respondent No.1 and his wife also came to be disposed of by the Ahmedabad District Consumer Redressal Forum on 15.7.1997, where certain mandatory orders were prayed for allotment of shares, and Appeal No.445 of 1997 filed against that order before the Gujarat State Consumer Disputes Redressal Commission is pending.
[b] Civil Suit No.3235 of 1998 was also filed before the City Civil Court, Ahmedabad, against the applicant company with injunction application Exh.5, which came to be rejected by the City Civil Court and, subsequently, by order dated 30.8.2000, the learned Judge, Page 19 of 99 C/AO/5/2014 CAV JUDGMENT Court No.16, City Civil Court, Ahmedabad, rejected the said suit as having become in fructuous.
[c] Appeal From order No.349 of 2000 filed in this Court against the judgment and order dated 11.72000 passed by the learned Chamber Judge, City Civil Court, Ahmedabad, in Civil Suit No.2554 of 2000, where the injunction was sought against inclusion in agenda dated 6.5.1998 being item No.11, and against dropping of resolution for general meeting dated 10.7.1978, and for declaring the minutes as null and void, are pending before this Court.
[d] Appeal From Order No.392 of 1992 against dismissal of Notice of Motion by the learned Chamber Judge, City Civil Court, Ahmedabad, praying for an injunction in respect of the general meeting to be held on 9.7.1999, was also disposed of by this Court.
[e] Civil Suit Nos. 6529 of 1999 and 3629 of 2000 with different prayers for staying extraordinary general meeting and proceedings of the company, where injunction applications were preferred, also came to be rejected.
5. Thus, according to the learned counsel for the applicants, having resorted to various remedies available under law and under the Companies Act and after approaching the City Civil Court and Consumer Court, this complaint filed by respondent No.1 is nothing, but vexatious, mala fide and abuse of process of law and none of ingredients of Section 406 of the Indian Penal Code is attracted. It is further submitted by the learned counsel for the applicants that, in the complaint, the complainant has suppressed various facts about his failure of obtaining an injunction and rejection of the claim by the consumer court.
Not only that, no legal right much less any substantial legal right is vested in the Page 20 of 99 C/AO/5/2014 CAV JUDGMENT complainant. The design of the complainant is clear to harass the Company so as to succumb to the illegal demand of obtaining 700 shares for one folio, which is not permissible. It is submitted by the learned counsel for the applicants that, so far as ingredients of Section 406 of the Indian Penal Code are concerned, the allegation about entrustment and dishonestly misappropriating or converting for own use of the company the property of the complainant in violation of law, cannot be even imagined and, therefore, to prevent abuse of process of law and to secure ends of justice, this is a fit case where this Court may exercise inherent power under Section 482 of the Code and quash the impugned complaint and the process issued thereon.
6. In counter, respondent No.1Party in Person appeared and vehemently submitted that the basic ingredients of an offense under Section 406 read with Section 114 of the Indian Penal Code, in the backdrop of allegations, are attracted. It is further submitted that the Company has tampered with the record of various proceedings and, to deprive the complainant, as a shareholder, of his legitimate right to get 700 shares of different seven folios, subsequently certain interpolation and corrections have been made, which indicates a dishonest attempt on the part of the Company. Not only that, but, according to the Party in Person, in spite of approaching the Company Officials in person and making various representations to appoint an arbitration through the Bombay Stock Exchange, no fruitful outcome is noticed , and even after transfer of shares, there is overwriting, which remains unexplained as on date. According to the Party in Person, there is large-scale fraud committed by the Company and, therefore, the process issued by the learned Magistrate, after recording reasons for the same and prima facie considering the material on record, need not be interfered Page 21 of 99 C/AO/5/2014 CAV JUDGMENT with. The Party in Person has also referred to various resolutions passed by the Board of Directors of the Company from 1998 and 2001 onwards along with SEBI Rules for such kind of transactions and submitted that the original claim of the complainant of allotment of 700 shares on the basis of seven different folios is denied by resorting to forgery, fabrication, overwriting and tampering with company records, which deserves a close scrutiny of this Court. Thus, according to the Party in Person, when the complainant and his wife are entitled to hold the shares more than one folio, such deprivation would amount to a dishonest attempt on the part of the Company and, for that purpose, investigation is necessary.
7. Having heard the learned counsel for the applicants, the Party in Person and the learned Additional Public Prosecutor, in my view, the complaint filed by the complainant is nothing, but, an attempt to entangle the Company, its Managing Director, Directors and other Officials in a criminal prosecution. Not only that, but it is also borne out from the record that the complainant has resorted to various civil remedies prior to and subsequent to filing of the complaint by approaching City Civil Court, Ahmedabad, and the Consumer Forum where the claim of the complainant is found to be meritless. The Consumer Forum found that no case was made out by the complainant, the Company had not violated any provisions of the Act and, since the shares were held by one person and it was clubbed in one portfolio, the complainant was entitled to 100 shares and not 700 shares. Even the City Civil Court, prima facie, did not accept the argument of the complainant and interim injunction applications were also rejected. Thus, the allegations made in the complaint do, prima facie, indicate an effort on the part of respondent No.1 to settle civil disputes and claims, which do not involve any criminal offense, by applying pressure through criminal prosecution.
Page 22 of 99 C/AO/5/2014 CAV JUDGMENT8. Now, I will examine whether the allegations made in the complaint, when taken at their face value as true and correct, constitute an offense defined under Section 406 of the Indian Penal Code. Section 406 of the Indian Penal Code reads as under:
"406.Punishment for criminal breach of trust- whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
What is 'criminal breach of trust' is defined in Section 405, which reads as under:
"405. Criminal breach of trust-
Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits 'criminal breach of trust'."
8.1 Therefore, to establish 'criminal breach of trust', the first requirement is 'entrustment' with property or with any dominion over property and, thereafter, dishonest attempt to misappropriate or convert such property, for own use or to dispose of in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied. Therefore, in the present case, when the Company had given preferential shares of HDFC Bank to the holder of one folio by allotting 100 shares, it cannot be said that the Company had dishonestly misappropriated or converted any property or such property over which the Company had dominion with dishonest intention. I, therefore, hold that the first Page 23 of 99 C/AO/5/2014 CAV JUDGMENT ingredient of 'criminal breach of trust' is missing to attract prosecution under Section 406 of the Indian Penal Code.
9. So far as other offenses, as alleged in the complaint, namely, Sections 467, 468 and 471 of the Indian Penal Code, are concerned, even the learned Magistrate was not satisfied and the process has been issued only for the offenses under Section 406 read with Section 114 of the Indian Penal Code.
10 The principles relating to exercise jurisdiction under Section 482 of the Code to quash complaint and criminal prosecution have been stated and reiterated by the Apex Court in several decisions right from the State of Haryana vs. Bhajan Lal, reported in AIR 1992 Supreme Court 604. The power under Section 482 of the Code should be used in a rarest of rare cases, sparingly, with caution and circumspection, on the following eventualities:
[i] A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offense or make out the case alleged against the accused.
[ii] Power should be exercised ex debito justitiae to prevent abuse of process of court [iii] to secure the ends of justice.
11. Considering the above, all the ingredients of Section 482 of the Code are attracted in the present case and issuance of process by the learned Metropolitan Magistrate, in the facts and circumstances of the case and in the backdrop of the allegations made in the complaint, according to this Court, do not attract any of the ingredients of Section 406 read with the definition provided in Section 405 of the Indian Penal Code. In my opinion, Page 24 of 99 C/AO/5/2014 CAV JUDGMENT issuance of process by the learned Metropolitan Magistrate is nothing, but the illegal exercise of power and filing of complaint is an abuse of process of the court.
12 Considering the overall facts and circumstances of the case and keeping in mind various decisions of the Apex Court, this is a fit case wherein the complaint and the process issued by the learned Metropolitan Magistrate therein deserve to be quashed.
13 In the result, this petition is allowed. The process under Sections 406 and 114 of the Indian Penal code dated 13.11.2000 issued by the learned Metropolitan Magistrate, Court No.18, Mirzapur, Ahmedabad, and Inquiry Case No.85 of 1998, now Criminal Case No.2373 of 2000, [Annexure "A"] are quashed. Rule is made absolute.
14 Consequently, Criminal Misc. Application No.860 of 2003 filed by the Party in Person stands disposed of accordingly. R & P, if any, be sent back."
(1) In addition to the above-mentioned proceedings, the defendants have also initiated several other proceedings before this High Court, which is alleged to have been initiated only to harass/defame the plaintiffs, and to cause falsehood. Such other litigations are as under:
(1) Sureshchandra V. Parekh & Anr. vs. Company Secretary & Ors. [O. J. Appeal No.13 of 2011];
(2) Sureshchandra V. Parekh & Anr. vs. Company Secretary & Ors. [Misc. Criminal Application No.6 of 2012];
(3) Mr. Sureshchandra V. Parekh & Anr. vs. Infosys Page 25 of 99 C/AO/5/2014 CAV JUDGMENT Ltd. & Ors. [Stamp No.612 of 2012];
(4) Mr. Sureshchandra V. Parekh & Anr. vs. Secretary & Ors. [Stamp No.1713 of 2012];
(5) Mr. Sureshchandra V. Parekh & Anr. vs. Secretary & Ors. [Stamp No.1731 of 2012]; and (6) Mr. Sureshchandra V. Parekh & Anr. vs. Secretary & Ors. [Misc. Criminal Application No.8 of 2012 in Company Petition 71 of 2012.
(2) Plaintiffs have also filed a criminal complaint being Criminal Case No.1264/S/2003 (old case no.
26/S/2001) against the defendants in the Metropolitan Court of Mumbai for their activities to transfer their shares in the name of defendant no. 2 disclosing her name in seven different manner i.e. Smt Neelaben S Parekh a single person being defended no. 2 was posed in seven different names viz;
(i) Nila Sureshbhai
(ii) N.S. Parekh
(iii) Nila S. Parekh
(iv) Nilaben Parekh
(v) Nilaben Parekh
(vi) Nilaben Suresh
(vii) Nilaben S. Parekh
(3) Defendants have challenged the proceedings of such
criminal case in Criminal Misc. Application No.3695 of 2001 before the Bombay High Court for quashing Page 26 of 99 C/AO/5/2014 CAV JUDGMENT the complaint and to discharge them from such allegations and complaints. However, Bombay High Court has refused to intervene and directed the trial Court to decide the discharge application within three months. The trial court being a Metropolitan Magistrate of Mumbai has by judgment and order dated 7/4/2007 dismissed the request for discharge. Such order was challenged by the present defendants in Criminal Misc. Application No.2078 of 2002 before the Bombay High Court, which was also rejected on 26/08/2002 with the following observations:
"...... This is clearly in violation of the provisions of the Companies Act as well as would amount to cheating and fraud and may be even forgery. In my view, the complaint makes out a prima facie case against the applicants.
5. It is different thing that the company discovered the fraud before allotment was made and, therefore, the preferential shares were not allotted to the applicants. the applicant no.2, who appears in person, has not made out any case for discharge. he relies on the various complaints and proceedings adopted by him against the respondent
- company which has got no relevance. In fact, I suggested to the counsel for the respondent - company to drop the proceedings against the applicants. However, I was told that the applicant no.2 has filed 15 false complaints against the company and its directors before various forums including Consumer Courts and Criminal Courts, which the applicant no.2 is not prepared to withdraw. I have perused the impugned order of the learned Magistrate dated 9th May 2002 and found no flow in it.
6. In the aforesaid circumstances, this application with is without substance, is rejected."Page 27 of 99 C/AO/5/2014 CAV JUDGMENT
(4) Thereby, when criminal charges regarding fraud and impersonation could not be dropped against the defendants, they have preferred SLP (Criminal) No.1322 of 2003 before the Hon'ble Supreme Court. However, Hon'ble the Apex Court refused to intervene and the SLP was dismissed.
(5) Even thereafter Criminal Writ Petition No.534 of 2009 was filed before the Bombay High Court for quashing the complaint, but the Bombay High Court has rejected it by an order dated 26/06/2009.
(6) Though the Apex Court dismissed discharge application, as discussed herein above, defendants have again filed criminal writ petition no. 430 of 2010 before the Bombay High Court once again seeking discharge from Criminal Case No.1260/S/2003. By order dated 09/02/2010, Bombay High Court has dismissed such writ petition.
(7) Till the date of the suit such Criminal Complaint No.1264/s/2003 was pending before the Hon'ble Court of Additional Chief Judicial Magistrate, 8 th Court, Explanade, Mumbai for orders wherein charges against present defendants are under Sections 68A, 116 and 625 of the Companies Act as well as under Sections 406, 419, 420, 465, 468, 469 and 471 read with 34, 120(b) and 500 of the Indian Penal Code. However, the outcome of such complaint results in acquittal of the defendants on Page 28 of 99 C/AO/5/2014 CAV JUDGMENT the ground that there is no proof of impersonation as alleged.
(8) Defendants have also filed Company Petition No.12/111/CLV/Mumbai Branch/2010 before the Company Law Board under Section 111-A of the Companies Act wherein the member of the Company Law Board rescued himself from all the matters concerning the defendants inter alia observing that :
"... This is clearly in violation of the provisions of the Companies Act as well as would amount to cheating and fraud and may be even forgery. In my view, the complaint makes out a prima facie case against the applicants.
5. It is a different thing that the company discovered the fraud before allotment was made and, therefore, the preferred shares were not allotted to the applicants. The applicant no. 2, who appears in person, has not made out any case for discharge. He relies on the various complaints and proceedings adopted by him against the respondent - company that has got no relevance. In fact, I suggested to the counsel for the respondent - company to drop the proceedings against the applicants. However, I was told that the applicant no. 2 has filed 15 false complaints against the company and its directors before various forums, including Consumer Courts and Criminal Courts, which the applicant no. 2 is not prepared to withdraw. I have perused the impugned order of the learned Magistrate dated 9th May 2002 and found no flaw in it.
6. In the aforesaid circumstances, this application with is without substance, is rejected."
(9) Another Company Petition No.91 of 2010 is preferred before the Company Law Board under Page 29 of 99 C/AO/5/2014 CAV JUDGMENT Section 284 of the Companies Act which is pending till date.
(10) Defendants have also filed Criminal Case No.86/SW/2010 in the Court of Metropolitan Magistrate Mumbai under Section 406, 420, 463, 467, 468, 471, 475, 476, 477-A, 500 and 114 of the Indian Penal Code read with Section 193, 194, 195, 196, 197, 198 and 199 of the Criminal Procedure Code and Section 628 of the Companies Act. Such complaint was forwarded for police investigation. However, in Criminal Application No.2078 of 2012, Bombay High Court has stayed the further proceedings of such complaint by order dated 06/02/2013.
10. In addition to above proceedings before different authorities and courts, it is submitted by the plaintiffs that defendants have issued several frivolous, vexatious and malicious notices under different provisions of different statutes to the plaintiffs no. 1 company, other companies and officer bearers, etc. some such notices are as under:
(1) Notice dated 22/01/1998 under Section 284 and 190 of the Companies Act.
(2) Notice dated 23/06/1999 under Section 284 and 190 of the Companies Act.
(3) Notice dated 16/06/2000 under Section 284 Page 30 of 99 C/AO/5/2014 CAV JUDGMENT and 190 of the Companies Act.
(4) Notice dated 02/04/2001 under Section 284 and 190 of the Companies Act.
(5) Notice dated 03/05/2002 under Section 284 and 190 of the Companies Act.
All above notices are for the purpose of removal of plaintiffs no. 2 as a director of plaintiffs no. 1 and therefore, being frustrated by the repeated abuse of the provisions of law, the plaintiff no. 1 company filed a company petition before the company law board being petition no. 11/284 (4) /CLB/WR/2002 wherein on 05/07/2002 the company law board had observed that the conduct of the respondent (Mr. S. V. Parekh) is not even raising the propose the resolution for removal of the director on some flimsy grounds, even when present at the annual general meeting only demonstrates that his intention to issue notice for removal of Shree Dipak S. Parekh year after year since 1998 is nothing but an abuse of the provisions of section 284 of the Act.
(6) Notice dated 10/04/2009 to move the annual general meeting for removal of plaintiff no. 2 from the office. Therefore, company filed a Company Petition before the Company Law Board being Petition No. 21/284 (4) /CLB/WR/2009 wherein on 017/06/2009 the company law board had observed that the conduct of Page 31 of 99 C/AO/5/2014 CAV JUDGMENT the respondent (Mr. S. V. Parekh) is not even raising the propose the resolution for removal of the director on some flimsy grounds, even when present at the annual general meeting only demonstrates that his intention to issue notice for removal of Shree Dipak S. Parekh year after year since 1998 is nothing but an abuse of the provisions of section 284 of the Act. The respondents are directed not to indulge further in sending notices under section 284 of the Act for the removal of Mr D. S. Parekh as director of the petitioner company on the same issue as mentioned in the notice dated 10/04/2009 for the annual general meeting to be held in 2009.
(7) Defendants have preferred an appeal against the above order under Section 10 F of the Companies Act before this High Court being O. J. Appeal NO.107 of 2009 with several vexatious and frivolous prayers. Such appeal was rejected on 01/02/2010 by following order:
In the facts of the case, we are not inclined to hold that the said direction is unjust or suffers from the vice of non-application of mind, more particularly when a finding of fact has been recorded after due consideration of the material on record, that the consecutive notices, containing similar grounds and revealing similar purpose (i.e. the statements made in, or the reasons given in, the notices) for circulating the resolutions, amount to abuse of the right (conferred on shareholders by Section 284 of the Act). We are, therefore, not inclined to interfere, under Section 10 (f) of the Act, with the impugned direction. For the reasons stated above the appeal, fails and deserves to be Page 32 of 99 C/AO/5/2014 CAV JUDGMENT rejected. Consequently, the appeal is hereby rejected.
(8) Against above order defendants have preferred Misc. Civil application 146 of 2011 in OJ Appeal No.107 of 2009, which was dismissed on 2nd December, 2011 since defendants did not remain present on several dates.
(9) Notice dated 02/04/2010 under section 190 of the Companies Act for removal of plaintiff no. 3 from plaintiff no.1.
(10) Such notice was challenged in Company Petition No. 10 of 2010 wherein the Company Law Board has by order dated 06/10/2010 directed the defendants not to indulge further in issuing such kind of notices.
(11) Above order was challenged in OJ Appeal No.82 of 2010 before this High Court for several vexatious reliefs.
The High Court has dismissed such petition relying upon the decision of the Supreme Court in the case of Stridewell leathers (P) Ltd. V. Bhankarpur Simbhaoli Beverages (P) Ltd. - 1994 (1) SCC 34).
(12) Notice dated 19/03/2012 and 09/04/2012 as a special notice under Section 190 to move the annual general meeting for removal of plaintiff no. 3 from the office.
Page 33 of 99 C/AO/5/2014 CAV JUDGMENT(13) Plaintiffs have filed Contempt Petition no. 334 of 2010 wherein by order dated 26/11/2012, show cause notice has been issued. Such contempt petition is pending.
11. Plaintiffs have contended in the plaint and application for interim relief that plaintiff no. 2 to 4 are having their reputation in the corporate filed since they are holding positions like chairman and director of several companies and even the Reserve Bank of India have appointed plaintiff no. 2 as chairman of the advisory group for securities market regulation. Plaintiff no. 2 was also chairman of Expert Committee constituted by the Ministry of Power to look into the reform, in the power sector. Plaintiff no. 2 has won several awards, including businessman of the year 1996, JRD Tata, Corporate Leadership Award, Qimpro Platinum Award for contribution to the service sector, Corporate Award and the Government of India conferred most prestigious Padhma Bhushan in 2006. He is also holding outstanding achievement award as a first international recipient of the institution of chartered accounts in England and Wales with several other international awards.
12. Whereas the plaintiff no. 3 is also on board of directors of several companies and vice Chairman and CEO of plaintiff no. l. He has also received several awards, details of which are listed in para-1.3 of the application. Whereas the plaintiff no. 4 is company secretary of plaintiff no.1.
13. Therefore, it is pleaded that they are reputed personality Page 34 of 99 C/AO/5/2014 CAV JUDGMENT of the society and thereby repeated lose talk and allegations before several authorities without having evidence, more particularly when competent judicial authorities have negativities such allegations against them and communication in different form at different places with same allegation amounts to their defamation, which ultimately results into damage to their reputation and therefore they have preferred the suit for permanent injunction with damages and prayed for interim relief also.
14. Defendant no.1 and 2 are husband and wife and now they are holding 1800 equity shares, which represents 0.0001% of the total, paid up share capital of the plaintiff no.1 company. They are claiming themselves as aggrieved shareholders. However, it is alleged by the plaintiffs that defendants are either individually or collectively but deliberately and for their own motives, which can be term as oblique and malafides, abusing the process of law and thereby maliciously filed several complaints/proceedings which are listed herein above (more than 30 in numbers and issued several notices (which are also more than 10 in numbers as listed herein above) against the plaintiffs. Thereby it is submitted that all such activities by the defendants are with the sole intention to defame, harm and tarnish the reputation of the plaintiffs and the employees, officers of the plaintiff no. l company in the eyes of general public, members of the board of directors of other companies where plaintiff no. 2 and 3 are also directors, shareholders of all such companies and before various forums and the authorities.
Page 35 of 99 C/AO/5/2014 CAV JUDGMENT15. Thus, defendants have initiated several proceedings which are listed herein above under several enactments like Consumer Protection Act, Companies Act, Indian Penal Code, Code of Criminal Procedure etc. before as many as nine authorities which are listed in para-2.3 of the application.
16. It is also submitted that allegations in all such proceedings are baseless, frivolous and malicious with the sole objective of defaming and causing loss, harassment and nuisance to the plaintiffs. It is admitted position that defendants have never succeeded in any of such bogus, absurd and vexatious proceedings.
17. It is further contended that after losing in all such litigations, defendants have addressed numerous defamatory and libelous letters, notices and oral as well as written complaints to various authorities across India and outside India with malafides intention and for cheap publicity and continue to defame the plaintiffs orally in several different meetings and gatherings of different companies and at different places where plaintiff no. 2 to 4 are present. Therefore, plaintiffs have been constrained to file such suit for aforesaid prayers.
18. The intention of the defendants has been explained in para3. 1 of the application. The sum and substance of which have been recorded herein above, wherein it becomes clear that since the defendants failed in their illegal and fraudulent plan to grab excess shares of plaintiff no. 1, in gross abuse of process of law and in furtherance of their common intention Page 36 of 99 C/AO/5/2014 CAV JUDGMENT to cheat and pressurize the plaintiffs to succumb to their illegal demands, maliciously filed several vexatious and defamatory proceedings and complaints before various authorities. When defendants have failed before different authorities, they started to address communication to different authorities and to attend several meetings and public places and continue to defame the plaintiff by circulating pamphlets and by oral allegations.
19. Details of different litigation are described in para-3.2 to 3.18 - total 48 pages of the application and basic information is already listed herein above.
20. Therefore, it is the case of the plaintiffs that defendants are habituated in filing frivolous litigations and when they failed, they have started to address letters to different authorities. Details of which are described in para-3.19 to 3.28 total 52 pages of the application. Plaintiffs have reproduced the contents of several letters by the defendants in these paras. Perusing of such paras clearly goes to show that there are repeated allegations regarding activities by the plaintiffs and naming those activities as scam of thousands of crores of rupees. So far as the order of the Bombay High Court stays the investigation and complaint pursuant to the quashing of Criminal Complaint by Gujarat High Court, in a letter addressed to the chief justice of Bombay high court several allegations are made against the judge of the Bombay High Court. No doubt that whether all such allegations are sufficient to award damages or not can be decided only after the full-fledge trial of the suit, the bare reading of all such Page 37 of 99 C/AO/5/2014 CAV JUDGMENT allegations clearly shows that it is nothing but in the nature of liable and slander which results into the defamation of the plaintiffs if there is no substance in all such allegations. Thereby so for as correctness of allegations are concerned, plaintiffs are relying upon outcome of different litigations preferred by the defendants wherein defendants could not prove any allegations and thereby ultimately all the litigations were not only terminated in favour of the plaintiffs but in most of the judgments, relevant portion of which are reproduced herein above, makes it clear that all such litigations are frivolous and practically by all the authorities including Courts have warned the defendants to refrain from continuing such practice. At least in one matter being Special Civil Application No.7564 of 2009, the High Court of Gujarat has expected that wisdom will prevail over the defendants in pursuing other litigations. At the same time, it is also clear that so far as issues regarding forgery and fraud alleged by the defendants with reference to the transfer of equity shares in question, in Criminal Misc. Application 7690 of 2000 Gujarat High Court has categorically held that the complaint filed by the defendant is nothing but an attempt to entangle the company, its managing directors, directors and other officers in a criminal prosecution. The defendants have also lost in all other litigations.
21. In addition to litigation and communication referred herein above, defendants has also managed to publish and article against the plaintiffs in a magazine "Crime Solution" in its edition of 23/03/2013 alleging that plaintiffs have committed scam of over Rs.8500 crores.
Page 38 of 99 C/AO/5/2014 CAV JUDGMENT22. It is further contended that in so many pleadings before different authorities and in several communications, plaintiffs have made several imputations, which is nothing but defamatory allegations without any substance and more particularly when competent and judicial authorities have not accepted all such imputations so as to take any action against the plaintiffs. Thereby it is submitted that all such activities by the defendants are also causing public nuisance.
23. I have gone to reproduce all the details of defamatory allegations which runs into hundreds of pages, however, on perusal of all such pleadings and documents, it becomes clear that when the defendants could not succeed in any of their attempt and before any authority to prove any such allegations that repeated allegations of similar nature even after adjudication of the same by competent authorities are certainly resulting into liable, slander and defamation of the plaintiffs. Plaintiffs have produced all relevant documents to prove all such contention, however, at such interim stage, it would be.....
24. Following statements are listed by the plaintiff as defamatory statements:
1) Commission of Fraud by Appellant No.1, its Directors and employees.
2) Commission of personal Fraud by Directors of Appellant No.1 [including Appellant Nos.2 and 3] and its employees [including Appellant No.4].Page 39 of 99 C/AO/5/2014 CAV JUDGMENT
3) Appellants get justice/ judgments by money power / pressure.
4) Commission of big scam with the help of government agencies.
5) All agencies remain silent because of money power of the Appellants.
6) Appellants have created and/or filed false, forged and fabricated documents.
7) Appellants have misguided Appellant No.1's Indian and foreign shareholders.
8) The Respondents have been denied their rights by unscrupulous methods and wrong application of the law through the backdoor influence of money power.
9) Advocates of the Appellants disclose wrong and illegal facts to Hon'ble Courts to obtain Orders.
10) The Appellants / the Directors of Appellant No.1 are thieves and they have eaten up all my money and cheated the Respondents.
11) The Appellants are guilty of making false statements and suppression of facts in various judicial/ quasi-judicial proceedings and to/ before Page 40 of 99 C/AO/5/2014 CAV JUDGMENT various authorities.
25. Plaintiffs have submitted following list of documents where defendants make defamatory statement. Original documents are also placed on record of the trial Court as well as this Court:
A.List of documents of last one-year prior to suit:
Sr. Mark No. Particulars Reference
No and Page in the Plaint
. Nos.
1. Ex. 4/ZZ @ Copy of letter dated Para 3.23.15
Pg.1179 of 18th March, 2013 sent @ Pg.224 and
R&P & by National Stock Para 3.23.21
Pg. 79 of Exchange of India @ Pg.228 of
Paper book Limited to Appellant the Appeal
No. 1. Memo
2. Ex. 4/BBB @ Copy of letter dated Para 3.23.19
Pg.1202 of 20th November, 2012 @ Pg.225 of
R&P & sent by the the Appeal
Pg.1 of Paper Respondents to Memo
book Institute of Company
Secretaries of India.
3. Ex. 4/CCC-1 @ A copy of e-mails Para 3.23.20
Pg.1239 of dated 12th February, @ Pg.227 of
R&P & 2013, 5th December, the Appeal
Pg.38 of Paper 2012, 7th December, Memo
book 2012 and 1st February,
2013 sent by the
Page 41 of 99
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Respondents to
GlaxoSmithKline
Pharmaceuticals
Limited.
4. Ex. 4/CCC-2 @ A copy of e-mail dated Para 3.23.20
Pg.1253 of 13th February, 2013 @ Pg.227 of
R&P & sent by the the Appeal
Pg.110 of Respondents to Memo
Paper book Registrar of
Companies, Western
Region, Mumbai.
5. Ex. 4/DDD @ A copy of e-mail dated Para 3.23.22
Pg.1268 of 28th February, 2013 @ Pg.229 of
R&P sent by the the Appeal
&Pg. 52 of Respondents to Memo
Paper book Investment
Information and Credit
Rating Agency of India
Limited, Mumbai.
6. Ex. 4/EEE @ Copy of letter dated Para 3.23.23
Pg.1272 of 15th February, 2013 @ Pg.229 of
R&P sent by the the Appeal
& Pg.56 of Respondents to Memo
Paper book Appellant No. 1 and its
officers.
7. Ex. 4/FFF @ A copy of e-mail dated Para 3.23.24
Pg.1285 of 18th February, 2013 @ Pg.230 of
R&P & sent by the the Appeal
Pg.115 of Respondents to Memo
Paper book Siemens limited,
Registrar of Company,
Bombay and Regional
Page 42 of 99
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Director, Bombay.
8. Ex. 4/HHH @ Copy of letter dated 1st Para 3.24.2
Pg.1301 of March, 2013 sent by @ Pg.231 of
R&P the Respondents to the Appeal
& Advocates of Memo
Pg.69 of Paper Appellants as well as
book Counsels appearing on
behalf of the
Appellants.
B. List of documents beyond 1 year of filing of the
suit:
Sr. Mark Particulars Referenc
No. No. with e in the
Page Nos. Plaint
1. Ex. 4/Y-2 @ Copy of 8 (Eight) Para
Pg.736 Applications filed by 3.10.1 @
Respondents before the Pg.194 of
Company Law Board, the Appeal
Mumbai Bench, under Right Memo
to Information Act, 2005 in
Company Petition No.
12/111/CLB/Mumbai
Bench/2010.
2. Ex. 4/DD-1 Copy of Notice dated 22nd Para
@ Pg.862 January, 1998 issued by 3.15.2 @
Respondent No. 1 under Pg.199 of
Sections 284 r/w 190 of the the Appeal
Companies Act, 1956. Memo
3. Ex. 4/EE @ Copy of notice dated 23 rd
Para
Pg.871 June, 2000 issued by 3.15.3 @
Respondent No. 1 under Pg.200 of
Page 43 of 99
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Sections 284 r/w 190 of the the Appeal
Companies Act, 1956. Memo
4. Ex. 4/FF - 1 Copy of notice dated 16 Para th @ Pg.873 June, 2000 issued by 3.15.4 @ Respondent No. 1 under Pg.200 of Sections 284 r/w 190 of the the Appeal Companies Act, 1956. Memo
5. Ex. 4/GG-1 Copy of Notice dated 2 nd Para @ Pg.881 April, 2001 issued by 3.15.5 @ Respondent No. 1 under Pg.201 of Sections 284 r/w 190 of the the Appeal Companies Act, 1956. Memo
6. Ex. 4/OO @ Copy of letter dated 16th Para Pg.1105 March, 2009 sent by the 3.23.2 @ Respondents to SEBI, Pg.212 of Registrar of Companies, the Appeal Governor, Reserve Bank of Memo India and Department of company Affairs, Delhi.
7. Ex. 4/PP @ Copy of letter dated 9th Para Pg.1109 April, 2009 sent by the 3.23.3 @ Respondents to Auditors of Pg.213 of Appellant No. 1 and the Appeal Auditors for Secretarial Memo Compliance Certificate.
8. Ex. 4/QQ @ Copy of letter dated 25th Para Pg.1121 March, 2009 sent by the 3.23.4 @ Respondents to Hari Bhakti Pg.214 of & Co. the Appeal Memo
9. Ex. 4/RR @ Copy of letter dated 17 th Para Pg.1125 October, 2010 sent by the 3.23.6 @ Page 44 of 99 C/AO/5/2014 CAV JUDGMENT Respondents to K.V. Pg.216 of Kamath, Chairman, ICICI the Appeal Bank Limited and Mrs. Memo Chanda Kochchar, Managing Director and CEO of ICICI Bank Limited.
10. Ex. 4/SS @ Copy of letter dated 5th Para Pg.1126 March, 2011 sent by the 3.23.7 @ Respondents to Hon'ble Pg.216 of Prime Minister of India, the Appeal Finance Minister, Speakers Memo of Lok Sabha and Rajya Sabha, Minister of Corporate Affairs, Law Minister, Members of Parliament and Department of Administrative Reform and Public Grievances.
11. Ex. 4/UU @ Copy of letter dated 3rd Para Pg.1158 November, 2011 sent by 3.23.9 @ Respondents to Dr. Bimal Pg.218 of Jalan. the Appeal Memo
12. Ex. 4/VV @ Copy of letter dated 2 nd Para Pg.1160 December, 2011 sent by 3.23.10 @ Respondents to Dr. J. J. Pg.220 of Irani. the Appeal Memo
13. Ex. 4/WW Copy of letter dated 19 th Para @ Pg.1162 March, 2012 sent by the 3.23.12 @ Respondents to Minister of Pg.221 of Corporate Affairs, the Appeal Page 45 of 99 C/AO/5/2014 CAV JUDGMENT Chairman, SEBI, Registrar Memo of Company, Bombay, Regional Directors, Bombay Stock Exchange Limited and National Stock Exchange of India Limited.
14. Ex. 4/XX @ Copy of letter dated 21st Para Pg.1164 October, 2012 sent by the 3.23.13 @ Respondents to National Pg.223 of Stock Exchange of India the Appeal Limited. Memo
15. Ex. 4/AAA Copy of letter dated 5 th Para @ Pg.1200 August, 2012 sent by 3.23.16 @ Respondents to the Hon'ble Pg.224 of Member/Bench Officer of the Appeal Company Law Board, Memo Mumbai
16. Ex. 4/GGG Copy of letter dated 27th Para @ Pg.1299 November, 2011 sent by the 3.24.1 @ Respondents to President, Pg.230 of Bar Council of India. the Appeal Memo
17. Ex. 4/III-1 Copies of notices issued by Para to III-5 @ the Respondents under 3.25.1 @ Pg.1311 Section 284 of the Pg.233 of Companies Act, 1956 to the Appeal Gruh Finance Ltd., Bombay Memo Stock Exchange Ltd., Bosch Limited, Siemens Limited, National Stock Exchange of India Limited.
18. Ex. 4/JJJ @ Copy of newspaper clipping Para 3.26 Page 46 of 99 C/AO/5/2014 CAV JUDGMENT Pg.1397 of Article titled "A Rajana @ Pg.241 Two gG Kaand Karta of the Adhdho Adadh Nadanu Appeal Koubhaand - HDFC/HDFC Memo Bank Aachrelu Rs.8500 Crore Nu Koubhaand "
published by "Crime
Solution" on 23rd March,
2012.
26. Plaintiffs have also submitted following list of authorities / persons / institutions / companies where defendants have forwarded different communications:
(1) His Excellency the Hon'ble President of India. (2) His Excellency the Hon'ble Vice-President of India.
(3) The Hon'ble Prime Minister of India. (4) Hon'ble Chief Justice of India and the Hon'ble Judges of the Supreme Court of India. (5) Hon'ble Chief Justice and the Hon'ble Judges of the Hon'ble High Court of Gujarat at Ahmedabad. (6) Hon'ble Chief Justice and the Hon'ble Judges of the Bombay High Court.
(7) The Registry of the Hon'ble Supreme Court of India, the Hon'ble High Court of Gujarat at Ahmedabad and the Hon'ble Bombay High Court. (8) The Hon'ble Chairperson of the Rajya Sabha. (9) The Hon'ble Speaker of the Lok Sabha. (10) The Hon'ble Finance Minister of India.Page 47 of 99 C/AO/5/2014 CAV JUDGMENT
(11) The Hon'ble Law Minister of India. (12) The Hon'ble Minister of Corporate Affairs. (13) Members of the Parliament. (14) The Chairman and the Members of the Hon'ble Company Law Board. (15) The Hon'ble Add. Chief Metropolitan Magistrate, 47th Court, Bombay. (16) Registrar of Companies, Bombay. (17) The Securities and Exchange Board of India. (18) The National Stock Exchange of India Limited. (19) The Bombay Stock Exchange Limited. (20) The Department of Administrative Reform and & Public Grievance, New Delhi. (21) Indian / Foreign Government Agencies. (22) Institute of Company Secretaries of India. (23) Investment Information and Credit Rating Agency of India Limited. (24) President of the Bar Council of India. (25) All mutual funds. (26) Shareholders of Appellant No.1. (27) Auditors of Appellant No.1. (28) Shri. Anna Hazare. (29) Shri. Subramaniyan Swamy. (30) His Excellency the Hon'ble President of the United States of America.
(31)The Hon'ble Judges of the Supreme Court of the United States of America.
(32) The Hon'ble Luxembourg Government and the Luxembourg Stock Exchange.
(33) The Hon'ble Singapore Government and the Page 48 of 99 C/AO/5/2014 CAV JUDGMENT Singapore Exchange Limited.
(34) All Indian / All Foreign Television Channels, Medias, News Papers, Internet, any other worldwide.
(35) HDFC Bank Limited.
(36) Chairman and Managing Director of ICICI
Bank Limited.
(37) GlaxoSmithKline Pharmaceuticals Limited.
(38) Gruh Finance Limited.
(39) Bosch Limited.
(40) Siemens Limited.
(41) Sun Pharmaceuticals Limited.
(42) Torrent Power Limited.
27. Plaintiff has also listed method and medium for
defamation, as under:
(1) Repeated Letters/Notices/Complaints/ Emails
[see Point D & E below] addressed to and/ or copy marked to various persons/ authorities [see Point C below].
(2) Notices under Section 284 of the Companies Act, 1956 to companies that are group companies of Appellant No.1 or companies wherein Directors of Appellant No.1 are Directors.
(3) Newspaper/Publications.
(4) Attending general meetings of Appellant No.1
and making the statements during the question -
answer session and creating a law and order situation.
(5) Attending general meetings of companies where the Directors of Appellant No.1 [in particular Appellant Nos.2 and 3] are Directors and making the Page 49 of 99 C/AO/5/2014 CAV JUDGMENT statements during the question - answer session and creating a law and order situation.
28. Based upon the entire set of pleadings and documentary evidence, it is submitted by learned advocate Mr. Mihir Joshi for the plaintiffs that defamatory allegations are to the effect that:
1) Plaintiffs have committed fraud, though defendants could not prove it.
2) Plaintiffs have created false documents, though the plaintiff could not prove it.
3) Plaintiffs have obtained judgments by fraud and money power, which are allegations against judicial and other authorities, though defendants could not prove it.
4) Plaintiffs have managed by government agencies to act in their favour even after commission of all such offenses, though defendants could not prove it.
5) Plaintiffs have committed scam of huge amount, though defendants could not prove it and
6) Several personal allegations against plaintiffs nos. 2 to 4, though defendants could not prove it.
The mode of defamation has been cited as Page 50 of 99 C/AO/5/2014 CAV JUDGMENT
a) By multiple letters to several agencies and authorities,
b) Shouting against plaintiffs in different meetings,
c) Multiple litigation
29. It is also submitted that all such activities are not for public interest or investigation about scams by the plaintiffs but practically it is malicious counter blast because of the complaint filed by the plaintiff against defendant no.2 for impersonation in different name as discussed in previous part of the judgment and not offering more number of preferential shares as desired by the defendants i.e. though defendants were holding 8 equity shares on the given date and though they were entitled to 100 preferential shares they want 800 equity shares by transferring their 7 shares in 7 different name of herself with different folio number with narration of her name differently.; i.e. though all such persons are one and same i.e. defendant no. 2.
30. As against that the defendant No.1 namely Sureshchandra Parekh has argued on behalf of both the defendants as party in person and submitted that plaintiffs have committed fraud and scam for which he has filed complaint against them before the competent authorities like the police, CBI, CID and therefore, the matter is sub judies and hence, this court should not entertain such application. He has read out before the court several documents from the documents submitted by him with his affidavit in reply, including several paragraphs of his affidavit in reply, (viz.
Page 51 of 99 C/AO/5/2014 CAV JUDGMENTPage nos. 301 to 312, 327, 400, 409 and 438 to 448). Thereby defendants have made an attempt to submit that the contents of all such pages crystallized the evidence regarding fraud and scam committed by the plaintiffs and therefore, in their submissions present suit is practically defaming him. To substantiate their argument, they are relying upon the judgment reported in (2011) 7 SCC 69 between Amar Sing v. Union of India and submitted that pursuant to such judgment, plaintiffs' suit deserves to be dismissed because they have not come forward with clean hand and litigation is malicious and malafides against them.
31. Perusal of all above pages and paras referred certainly gives an impression that defendants do not understand the legal issues and the outcome of the litigation by or against him and is language is certainly not only defamatory but abusing the judicial process.
32. If we recollect some of them, though there is an allegation that plaintiffs have suppressed 72 material facts, there is no clarity that which material is suppressed, though there are lengthy affidavits and submissions some of them does not make any sense and there is either repetitious and irrelevant text in such submissions. Some of the observations in some of the judgments are wrongly interpreted by the defendants suitably in their favour; when particular allegations are disbelieved by competent authorities, instead of approaching higher authorities defendants have repeatedly alleged the same allegation/proceedings. It cannot be termed as justification, but it results such proceedings as malicious.
Page 52 of 99 C/AO/5/2014 CAV JUDGMENTAt least on page 375 which is a reply by defendants in CA No. 1314 of 2013 in AO (stamp) No. 493 of 2013, in para-5.11 (9), defendants have categorically stated that "some Bombay High Court judges are helping to save HDFC Rs.10,000 crores fraud so HDFC got justice by undue advantage of legal system only".
33. Unfortunately, during the arguments and in different communications, the stand of the defendant is that he is habituated to speak the truth, even if it is not liked by the other and that whatever is stated in all the communications is nothing but the truth. However, it cannot be ignored that none of the Authority and Courts' have, while deciding the issue on hand, ever believed his statement as correct.
34. One more defense is to the effect that plaintiffs have managed to publish article through one Harsh Mishra in journal, namely 'Chartered Secretary' in its volume of August, 2010 and defame them. A copy of such article is produced by defendants at page 445 which is list of documents before this court, the perusal of which makes it clear that there is a reference of the cases initiated by or against the defendants and the writer of the article has given his interpretation or thoughts on the subject of shareholders' right and illegitimate use thereof. However, in no way it can be termed as a defamatory statement by plaintiffs so as to defame the defendants only because of an allegation by the defendants that plaintiffs have managed to publish such articles. In any case, it does not give right to the defendants to defame plaintiffs. It is also evident that the defendants have Page 53 of 99 C/AO/5/2014 CAV JUDGMENT repeatedly alleged in their pleadings and communication that more than 18 false and forged documents filed/hide with false judgments/arbitration filed against them by the plaintiffs. Though defendants could not show that documents which are forged or false and which judgment are fabricated or forged. It is obvious that alleging about production of false or forged documents is different and alleging about forged judgment and if the litigant is not able to show that which judgment are forged then repeated allegation to that effect would certainly amount to defamation.
35. Therefore, prima facie it becomes clear that the action of the defendants are certainly defamatory and malicious in nature and the only defense by the defendant is regarding the privilege of making such statement as well as justification. However, defendants have failed to prove both privilege and justification in making such allegations. It is clear that activities by the defendants are defamatory and malicious and therefore, the plaintiffs are entitled to protect their rights in appropriate order.
36. The suit is preferred for permanent injunction to restrain the defendants from making defamatory statements in any manner, more particularly, by circulation and communication in different manner to different authorities and before different forums, with interim relief of identical nature by notice of motion, wherein initially the Civil Court has granted a limited injunction only in terms of para 9 (a) of the application. All the defendants are duly served. The plaintiffs have also filed their rejoinder.
Page 54 of 99 C/AO/5/2014 CAV JUDGMENT37. The plaintiffs have also relied upon following decisions:
A. For the concept of Defamation - Libel:
1) Southern Industries Corporation Ltd. v/s. A.S. Mani and Anr. - AIR 2001 Mad 119 (Para 4, 5 and 9 to 11) contending that there are similar acts as the present case were due to the defamatory allegations against the Company and its directors and employees. Injunction granted at an interim stage.
2) Selvi. J. Jayalalithaa v/s. Penguin Books India - 2013 (54) PTC 327 (Mad) (Para 62, 63 and 74 to 76) contending that injunction can be obtained in cases relating to 'Defamation' when the Plaintiff comes at an earlier point of time and the concept of damages does not have an application in such cases.
3) South Hetton Coal Company Limited v/s. North-
Eastern News Association Limited - (1894) 1 Q.B. 133 (Page 145 onwards - Relevant, Part @ Pg148) A Corporation may sue for a libel calculated to injure them and may do so without any proof of special damage A. DEFAMATION - SLANDER
1) Ramdhara and Anr. v/s. Mst. Phulwatibai - 1970 CriLJ 286 (4th and 3rd Last Para) Both Libel and Slander are actionable in the Civil Court without proof of special damages.
Page 55 of 99 C/AO/5/2014 CAV JUDGMENTA. ABSOLUTE PRIVILEGE
1) Dhiro Koch and Anr. v/s. Gobinda Dev Mishra Bura Satria - 65 Ind. Cas. 204 (Para 1, 14 and 15) Defamatory statements made by parties in pleadings are not absolutely privileged
2) Girbala Dassi v/s. Pran Krishto Ghosh - 8 CWN 292: It was held in this case that where the defamatory statement is not relevant to circumstances in which it is made, it cannot be said to have been made in good faith and Exception 9 to S. 499 would not come into play. It was further held that the allegations about the character of the complainant were not relevant in the case and were defamatory and were not protected within Exception 9 of S. 499, Cr. P. C. Thus, the party cannot claim the privilege of saying anything in good faith within pleadings, when an irrelevant statement made in pleadings by parties on their own accord and wantonly.
A. MALICIOUS / INJURIOUS FALSEHOOD
1) Dabur Ltd. v/s. Colortek Meghalaya Ltd.- 2010 (42) PTC 88 (Del) Para 8.1 Ingredients of Malicious/ Injurious Falsehood
2) Villa General Trading Co. W.L.L. and Anr. v/s. Chordia Fashions Pvt. Ltd. - 2005 (3) BomCR 41 (Para 12 and
13) Ingredients of Defamation and Injurious Falsehood and the difference. Mere possibility of a special damage is Page 56 of 99 C/AO/5/2014 CAV JUDGMENT sufficient for an injunctive relief.
A. ABUSE OF LEGAL PROCESS
1) C.B. Aggarwal v/s. P. Krishna Kapoor - AIR 1995 Delhi 154 (Para 22 and 24) Ingredients to establish an abuse of legal process i.e. Party had an ulterior purpose
2) Filmistan Distributors (India) Pvt. Ltd. v/s. Hansaben Baldevdas Shivlal & Ors. - AIR 1986 Guj 35 (Para 16, 17 and 21) Meaning and ingredients of abuse of legal process.
3) Bhagwan Singh v/s. Management of Bali Singh and Bhagwan Singh - AIR 1969 P&H 147 (Para 8) Meaning of 'proceeding' A. DEFENSES TO DEFAMATION
1) Shree Maheshwar Hydel Power Corporation Ltd. v/s. Chitroopa Palit & Anr. - 2004 Vol.106 (1) BomL. R. 186 (Para 49 to 57) Mere plea of justification is not sufficient for denial of interim relief. The Defendants apart from taking a plea of justification will have to show that the statements were made bona fide and in public interest and the Defendants had taken reasonable precaution to ascertain the truth. Under Article 19 (1) (a) a citizen does not have a right to make a defamatory statement.
2) Gulf Oil (GB) Ltd. v/s. Page & Ors. - (1987) 3 AllER Page 57 of 99 C/AO/5/2014 CAV JUDGMENT 14 in a suit for Defamation, an Interim Injunction granted when the material being published in pursuance of a conspiracy and had the sole purpose of injuring the Plaintiff. Bonnard vs. Perryman distinguished.
3) Prameela Ravindran v/s. P. Lakshmikutty Amma & Anr. - AIR 2001 Mad 225 (Para 1, 2 and 9) Principle of balance of convenience and prima facie case for interim injunction from publishing any defamatory statements.
A. SUPPRESSION OF FACTS
1) S.J.S. Business Enterprises (P) Ltd. vs. State of Bihar and Ors. - (2004) 7 SCC 166 Suppressed facts must be a material one in the sense that had it not been suppressed it would have had an effect on the merits of the case.
38. The defendants have resisted the notice of motion mainly on the ground that they have communicated and circulated the material in the public interest and the entire focus of the communication is to bring out the scam by the plaintiffs, as alleged by them. With reference to the issue on hand, such defence is to be treated as a privilege based upon justification.
39. The pleadings and documents run into a number of pages, but at this stage, the relevant issue is granting of interim relief, as prayed for, and for the purpose, it would be appropriate to discuss the relevant legal position.
Page 58 of 99 C/AO/5/2014 CAV JUDGMENT40. It is undisputed that the plaintiffs' suit is based upon the allegation that the communication published by the defendants are defamatory in nature; therefore, they have preferred this suit for an injunction restraining the defendants from further circulation and communication of such defamatory material. It is also undisputed that such communications contain several statements, which would even otherwise give rise to complaint for defamation by the persons concerned.
41. With this reference, one has to consider the observations of the Patna High Court in the case between Pandey Surendra Nath Sinha and another vs. Bageshwari Pd. Reported in AIR 1961 Patna 164, that the word 'defamation' is a generic name for the wrong done to a man's reputation, and libel and slander are particular forms of it. Defamation should be in some visible form, but when such form of communication is in abusive and insulting language, unless excused or protected by any other rule of law, it is in itself a substantive cause of action and a civil injury. Apart from penal actions for defamation and the malice, it is an element of liability for abusive and insulting language, and that malice will be presumed or inferred unless the contrary is shown. The true test of the defamatory nature of any given language is its tendency to excite, against the plaintiffs, feeling of hatred, contempt, ridicule, fear, dislike, and disesteem, and regard being had to the time at and the circumstances in which such language was used, so as to cause the plaintiffs to have a reasonable apprehension that his reputation had been injured and to inflict upon him pain in Page 59 of 99 C/AO/5/2014 CAV JUDGMENT consequence of such belief. The scope of an injunction is to be found conceivably in cases of libel, where a libel has already been published, an injury is likewise concluded and there remains nothing to prevent what has already been perpetrated, though a libel may operate again, as a threat to future libel. In such cases, where part of injury in one's reputation has been concluded and a part still remains as a threat or intendment to future injury, the plaintiffs may claim damages for the past injury and obtain an injunction to prevent its repetition in future. It is further observed that - a wrong of defamation, as such, consists in the publication of a false and defamatory statement concerning another person without lawful justification. Speaking generally, every man is entitled to the good name and to the esteem in which he is held by others and has a right to claim that his reputation shall not be disregarded by defamatory statements made about him to a third person or persons without lawful justification or excuse. Reputation and honour is not less precious to good men than bodily safety and freedom. In some cases, they may be dearer than life itself. Thus, it is needful for the peace and well being of citizens in a civilized commonwealth that the law should protect the reputation as well the person of the citizen. A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers, which tends, that is to say, to lower him in the estimation of right thinking members of the society generally and in particular to cause him to be shunned or avoided or regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business. Defamation, therefore, is the wrong Page 60 of 99 C/AO/5/2014 CAV JUDGMENT done by a person to another's reputation by words, signs, or visible representations. The test of the defamatory nature of a statement is, therefore, its tendency to excite against the plaintiffs the adverse opinions or feelings of another person. The statement is judged by the standard of opinion which prevails among the ordinary right thinking members of society, that is, reasonable people of the time and place and not the opinion, which prevailed in another time, or in another country or among a special class or abnormally constituted people. Hence, the test is an objective one and it is no defense to say that the statement was not intended to be defamatory or uttered by way of a joke.
42. The defamation may consist of these three essential elements; (i) there must be a defamatory statement, (ii) the defamatory statement must be understood by right thinking or reasonable minded persons as referring to the plaintiffs and
(iii) there must have been the publication of the defamatory statement, that is, it must have been communicated to some person other than the plaintiffs. Though it can be said that this is a civil litigation, it cannot be ignored that when the communication contains substances, which may give rise to a criminal complaint against defendants by such communication, then one has to compare the elements of defamatory statements with reference to the penal law and element No. (ii) referred to hereinabove. Considering explanation - 4 to section 499 of The Indian Penal Code, which is pertinently stating that-
"No imputation is said to harm a person's reputation unless that imputation directly or indirectly, in the estimation of others, lowers the moral or intellectual Page 61 of 99 C/AO/5/2014 CAV JUDGMENT character of that person, or lowers the character of that person in respect of his caste or of his calling, or lowers the credit of that person, or causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful."
The expression 'directly or indirectly' is significant in the sense that it goes to classify the defamatory statement under two heads: (i) which prima facie refers to the plaintiffs and (ii) which refers to the plaintiffs not prima facie, but by innuendo, that is, which becomes defamatory of the plaintiffs because of secondary meaning inherent in the statement made. As to the latter, explanation 3 to Section 499 of the Indian Penal Code states that-
"An imputation in the form of an alternative or expressed ironically, may amount to defamation."
43. Under section 38 of The Specific Relief Act-1963, a perpetual injunction may be granted to prevent the breach of an obligation, whether expressly or impliedly, threatens the publication which is punishable under Chapter XXI of The Indian Penal Code, that is, a breach of an obligation; though it is not a civil wrong, the Court can grant an injunction to restrain the publication. Sec. 55 of The Specific Relief Act of 1877 gives the following illustrations in the case of defamation. Illustration (e) states: "A threatens to publish statements concerning B which would be punishable under Chap. XXI of the Indian Penal Code, the Court may grant an injunction to restrain the publication, even though it may be shown not to be injurious to B's property. Illustration (f) runs thus: "A, being B's medical adviser, threatens to publish B's Page 62 of 99 C/AO/5/2014 CAV JUDGMENT written communications with him, showing that B had led an immoral life, B may obtain an injunction to restrain the publication. The Court may issue, when necessary, a mandatory injunction ordering the defamatory statements to be given up and destroyed. (Para 7 on page 49 of AIR 1982 M.P. 47)
44. Therefore, though the illustrations are not given in the new Act, it cannot be said that the omission of the illustration changes the law, when the text of the section remains unchanged except renumbering.
45. It is quite clear and admitted position that the contents and language of communication in question in the case on hand are not only defamatory, but in such a fashion that it highlights a group of persons and defendants have categorically pleaded that they have got proof to prove such facts, i.e., they are not denying that such articles and communications are not defamatory, but claims that they can prove the same if so required, i.e., pleading justification - then evidence regarding such details must be disclosed on record to prove the bonafide and justification, else, in absence of it, defendant could not be permitted to continue to commit offence which is otherwise punishable under the Indian Penal Code.
46. Thus, a defamatory statement is actionable per se unless the defendant can establish that he is authorized or otherwise justified in making such statement. The wrongful act of defamation is both a crime as well as a tort, but since the Page 63 of 99 C/AO/5/2014 CAV JUDGMENT latter is not codified, the fact whether the defendant was authorized or otherwise justified in making the impugned statement will have to be determined with reference to any one of the ten exceptions carved out of the offence of defamation, as defined in Section 499 of The Indian Penal Code. Hence, if any publication does not fall under any of such ten exceptions, then injunction against publishing an article / communication in any form imputing allegations against a person may be granted; more particularly, an interim injunction restraining the defendant from further publication of the alleged libel, if the defendant could not prove any of the exceptions or justify himself and if he had no evidence to prove either of such exceptions to substantiate it as produced on record, interim injunction can be granted.
47. In the case between M/s. Garden Silk Mills (P) Ltd. vs. Vasdev Motwani and another, reported in AIR 1989 Delhi 46, it is held that the actions for libel and slander are, thus, private legal remedies, the object of which is to make reparation for the private injury done by wrongful publication to a third person or persons of defamatory statements concerning the plaintiffs. The defendant in these actions may prove the truth of the defamatory matter and thus, show that the plaintiffs have received no injury. For, though there may be damage accruing from the publication yet, if the facts published are true, the law gives no remedy by action. Thus, when a defamatory matter is published against an individual respectable citizen, it gives rise to two types of actions; one is a criminal prosecution for defamation and the other by treating the injury as a civil wrong which may justify a suit for Page 64 of 99 C/AO/5/2014 CAV JUDGMENT damages and also an injunction if there is threat or reasonable apprehension that the injury will be repeated.
48. Considering the above discussion, on perusal of the evidence on record, it is certain that some of the allegations made in the disputed article and communications are certainly giving cause for criminal proceedings and since reputation is not a tangible or intangible property, but it is the status of mind and belief which has a tendency to injure the reputation of a person against whom some loose statements are published / communicated and it may be either personal against him or certainly against the Company or any such person; therefore, it can not be said that there is no harm to the reputation of the plaintiffs. Therefore, the plaintiffs have right to request the Court of law to stop repetition of such defamatory act by the person against whom they apprehends that if they would repeat such act which would be continued as defamation, irrespective of any injury or loss to such plaintiffs.
49. In support of such arguments, the plaintiffs have relied upon number of citations and tried to emphasize that freedom of the speech is not higher than the rights of a citizen and that use of such freedom as to constitute infractions of law relating to defamation is not allowed and that injunction against publication of such article and communication can not be refused on the ground that reputation can be compensated by paying damages because it will amount to granting licence to publish defamatory news against payment of compensation and that freedom does not give free hand to publish Page 65 of 99 C/AO/5/2014 CAV JUDGMENT defamatory matter under the guise of free expression and reformation in the society and that the Court is empowered to grant interim injunction against publication of the defamatory articles and communications.
50. The freedom of speech under our Constitution is not higher than that of citizen, and that there is no privilege as distinguished from the prestige of the public at large. That the exercise of expression is subject to the reasonable restriction borne out by Clause (2) of Article 19 of the Constitution.
51. This right has to go through a case-by-case development. The concepts dealt with herein are still in the process of evolution.
52. In the case between Hari Shankar vs. Kailash Narayan and others, reported in AIR 1982 Madhya Pradesh 47, it is held that if the reputation of a respectable citizen can be measured in terms of money, then, the amount to issue of a licence against a citizen and asking him to take money as compensation for the injury, he has suffered to his reputation. Therefore, paying damages in terms of money cannot compensate reputation.
53. In the case between K. V. Ramaniah vs. Special Public Prosecutor, reported in AIR 1961 Andhra Pradesh 190 it is said that freedom of speech in article 19 (1) cannot be taken to mean absolute freedom to say or write whatever a person chooses recklessly and without regard to any person's honour and reputation. The right guaranteed by Page 66 of 99 C/AO/5/2014 CAV JUDGMENT the Constitution, it must be borne in mind, is to the entire citizen alike. The right in one certainly has a corresponding duty to the other and judged in that manner also, the right guaranteed cannot be a qualified one. Indeed the right has its own natural limitation. Reasonably limited alone, it is an inestimable privilege. Without such limitations it is bound to be a scourge to the Republic.
54. Above principals are reaffirmed in recent judgment dated 16 January, 2014 of the Delhi High Court in the case between Swatanter Kumar V/S Indian Express Ltd & Ors I.A. No.723/2014 in CS (OS) No.102/2014 when it is observed in para 32 that freedom of expression in press and media is the part of Article 19(1) of the Constitution of India where by all the citizens have a right to express their view. However, the said right of the expression is also not absolute but is subjected to the reasonable restrictions imposed by the Parliament or State in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence. The said position is clear from the plain reading of the Article 19(1) and (2) of the Constitution of India.
55. Thus, no law shall abridge the freedom of speech, or of the press, this right having regard to its natural limitations, has invariably construed to mean a qualified right and for this purpose the doctrines such as the doctrine of danger, present and clear, or of substantial evil sufficient to justify impairment of the right, have been invoked to place that right within the Page 67 of 99 C/AO/5/2014 CAV JUDGMENT limits. Our Constitution framers have in terms provided the necessary qualifications to this right. Article 19 (2), in this behalf, contains safeguards of reasonable restrictions on the exercise of the right and it provides that provision of article 19 shall not affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said some clause in the interest of security of the State, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, defamation or incitement to and offences.
56. Litigants do not enjoy some kind of special privilege, and do not have greater freedom than others to make any imputations or allegations, sufficient to ruin the reputation of a citizen. Even the truth of an allegation does not permit a justification unless it is proved to be in the public good. The question whether or not it was for public good is a question of fact like any other relevant facts in issue. If they make assertions of facts as opposed to comments on them, they must either justify these assertions or, in the limited cases, show that the attack on the character of another was for the public good, or that it was made in good faith.
57. Litigants are subject to the same rule as other critics and have no special right or privilege, and in spite of the latitudes allowed to them, it does not mean that they have any special right to make unfair comments or to make imputations upon or in respect of a person's profession or calling. The range of a journalist's criticism or comment is as wide as, and Page 68 of 99 C/AO/5/2014 CAV JUDGMENT not wider than, that of any subject. Though it may be said to be true in one sense that newspapers owe a duty to their readers to publish any and every item of news that may interest them, that is not, however, such a duty as makes every communication in the paper relating to a matter of public interest a privileged one. The defendants have to show that what they communicated was relevant or pertinent to the privileged occasion.
58. The plaintiffs have also relied upon the settled principle of law that in an action for defamation, every Court within whose jurisdiction, the aggrieved person was defamed, has got jurisdiction and that similarly, whosoever is having the privilege to publish such news which are otherwise defamatory, is bound to prove such privilege, i.e., onus of burden of proof rests upon the person; therefore, it is shown by the plaintiffs that the disputed articles / communications are defamatory, then he can certainly initiate proceedings or action against defamation and it is not necessary that all the persons understand the libel.
59. In the case between National Sugar Mills Ltd. v. Ashutosh Mukherjee reported in AIR 1962 Calcutta 27, the High Court has while dealing with the provisions of Sections 54 and 55 of The Specific Relief Act (1877) with its illustrations and Order 39 Rule 1 & 2 of The Code of Civil Procedure (1908) held that perpetual interim injunction can be granted restraining publication of defamatory items. The Court was dealing with an application for an interim injunction pending the determination of the suit to restrain Page 69 of 99 C/AO/5/2014 CAV JUDGMENT the defendant, his servants and agents from publishing the words mentioned in certain documents or any of them or any similar words or words to the unlike effect which are defamatory of the plaintiffs. After discussing the facts of the case, the High Court has, in order to put matters beyond any doubt, called for the production of relevant documentary evidence and held that prima facie, therefore, it appears that the plea of justification which the learned counsel for the defendant wanted to rely on is without any foundation. The Court has quoted the difference between the law of England on this point and that in India that has been noted by Woodroffe in his Law relating to Injunctions, 5th edition, at page 303, wherein the learned author says:
"The exception also to the general rule has again in view the anticipated verdict of a jury. There does not therefore appeared to be in this country so much, if any, reason for the limited exercise of the jurisdiction. In the case of every application for temporary injunction the Court has no doubt to act with caution, but it is submitted that there is no ground in reason why the courts should be more cautious in restraining the commission of an alleged libel than in restraining any other alleged tort. And this is the more so, inasmuch as a tort to reputation is of a grave, if not of a grave character than torts to property only, which in a large number of cases are remediable by money compensation."
60. It is further held that the suit is for perpetual injunction restraining the defendant from publishing words about the defamatory character of the nature, mentioning the plaint and in aid of that plaintiffs can certainly ask for protection of his reputation by the temporary injunction if the facts of the case justify it. Thus, in fact the situation in this sited case is Page 70 of 99 C/AO/5/2014 CAV JUDGMENT completely similar to the situation on hand and therefore there is no doubt that if there is no evidence on record to establish the correctness of the justification, even prima facie, then the defendant must be restrained from continuing tort by imputation of plaintiffs.
61. The defense of justification is the plea of the truth of the words or statements published by the defendants. The form of the plea is that "the words complained of are true in substance and in fact". Truth is a defense 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 neither does nor 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 has proved to have been activated 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.
62. Whereas, in order to come within the First Exception to Section 499 of the Indian Penal Code, it has to be established that what has been imputed concerning the persons is true and the publication of the imputation is for the public good.
Page 71 of 99 C/AO/5/2014 CAV JUDGMENTThe onus of proving these two ingredients, namely, the truth of the imputation and the publication of the imputation for the public good are on the publisher - defendant, who totally failed to establish these pleas.
63. True that it is not defamation to make an imputation on the character of another provided that the imputation is made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.
64. 'Good Faith' is defined, by Section 52 Indian Penal Code as follows: "Nothing is said to be done or believed in 'Good faith, which is done or believed without due care and attention". The insistence is upon the exercise of due care and attention. The standard of care and attention must depend on the circumstances of the individual case, the nature of the imputation, the need and the opportunity for verification, the situation and context in which the imputation was made, the position of the person making the imputation, and a variety of other factors. Good faith, therefore, is a matter of evidence. It is a question of fact to be decided on the particular facts and circumstances of each case. So to the question whether an amputation was made for the public good. In fact, the first Exception of Section 499 of Indian Penal Code expressly states "Whether or not it is for the public good is a question of fact" 'Public Good' like 'Good faith' is a matter of evidence and not conjecture.
65. It would be a question to be considered on the facts and circumstances of each case - what is the nature of the Page 72 of 99 C/AO/5/2014 CAV JUDGMENT imputation made; under what circumstances did it come to be made; what is the status of the person who makes the imputation; was there any malice in his mind when he made the said imputation; did he make any enquiry before he made it; are there reasons to accept his story that he acted with due care and attention and was satisfied that the imputation was true? These and other considerations would be relevant in deciding the plea of good faith.
66. Several questions arise for consideration if the defense of justification is to be applied to the facts of the present case. Was the Article published or material communications are after exercising due care and attention? Did the author of the articles / communications satisfy himself that there were reasonable grounds to believe that the imputations made by him were true? Did he act with reasonable care and a sense of responsibility and propriety? Was the articles / communications based entirely on the evidence or was there any other material before the author? What steps did the author take to satisfy himself about the authenticity of the articles / communications and its contents? Were the imputations made rashly without any attempt at verifications? Whether the imputation was the result of any personal ill will or malice, which the author borne towards the victims? Was it the result of any ill-will or malice, which the author bore towards the group to which the victims belonged? Were the articles/ communications merely intended to malign and scandalize the victims or the religion to which they belonged? Were the articles / communications intended to expose the scam or/and misdeeds only or for some other purpose? Were the articles / communications intended to expose the Page 73 of 99 C/AO/5/2014 CAV JUDGMENT despicable character of persons or for some other purpose? Was the articles / communications merely intended to provide salacious reading material for readers who had a peculiar taste for scandals? These and several other questions may arise for consideration. Surely, the stage for deciding these questions has not arrived yet. Answers to these questions at this stage, in the absence of any material and evidence on record and before its scrutiny by judicial eye, and thus the acceptance of a plea of justification of the defendants can only be a prior conclusion. 'Good faith' and 'public good' are questions of fact and matters of evidence. So, the same cannot be accepted in the absence of evidence at least on record for prima face scrutiny.
67. Good faith requires care, caution, and prudence in the background of context and circumstances. The position of the person making the imputation will regulate the standard of care and caution. Under the Eighth Exception a person makes statement to another who has authority to deal with the subject matter of the complaint, whereas the Ninth Exception deals with the statement for the protection of the interest of the person making it. The interest of the person has to be real and legitimate when the publication is made in protection of the interest of the person making it.
68. On the contrary, the evidence is that the imputation concerning the plaintiffs is not true, but is motivated by animus of the defendants.
69. If it is proved that defendants have made defamatory Page 74 of 99 C/AO/5/2014 CAV JUDGMENT comments with an ulterior motive, without the least justification and motivated by self-interest, deterrent sentence may be required to be imposed in the case of complaint by the victim and therefore, unless proof regarding absence of ulterior motive and justification does not come on record, Court must restrain the publisher from continuing the communication of defamatory allegations; because by such restriction, in fact, what is restrained is commission and repetition of criminal offence and therefore, there can not be bar in granting such injunction in absence of proper proof and evidence to prove that publication is not motivated by self- interest or otherwise than public interest, only upon a plea of justification.
70. In the case between M.B. Kanwar, Editor, Printer and Publisher of 'Rana Partap', Ambala vs. The State, reported in AIR 1963 Punjab 201, while dealing with the plea regarding freedom of speech, the High Court has held that - speaking generally, every man is entitled to his good name and to the esteem in which he is held by others, and has a right to claim that his reputation shall not be disparaged by defamatory statements made about him to a third person or persons without lawful justification or excuse. The freedom of speech and expression is not to be exercised in such a way as to constitute an infraction of the law relating to defamation. It has been said that just as every individual possess the freedom of speech and expression, every person also possessed a right to his reputation, which is regarded as property. Hence nobody can so use his freedom of speech or expression as to injure another's reputation or to indulge in Page 75 of 99 C/AO/5/2014 CAV JUDGMENT what may be called character assassination.
71. It is certain that the defendant in the present case repeatedly communicated to different authorities to make a scurrilous attack on the character and conduct of a Jain monk and nuns, the inevitable effect of which was to lower them in the estimation of others. The material on the record shows that the different imputations were published by the defendant without any basis or justification. Therefore, plaintiffs are entitled to appropriate order for protection of their reputation.
72. So far as burden of proof is concerned, in the case between Thakur Dongar Singh vs. Krishna Kant and another, reported in AIR 1958 Madhya Pradesh 216, it was held that in the case of publication of a defamatory matter, the actual source of information on which the defendant has acted and the justifiability of him in so acting ought to be considered, and even absence of malice is not enough to prove good faith.
73. In AIR 1970 Supreme Court 1372, between Chaman Lal, v. The State of Punjab, the apex Court has, while dealing with the issue of proof with reference to good faith and bona fide in defamation, observed that, in order to establish good faith and bona fide, the circumstances under which the articles / communications were written or words were uttered is to be seen first; secondly, whether there was any malice; thirdly, whether the accused made any enquiry before he made the allegations; fourthly, whether there are Page 76 of 99 C/AO/5/2014 CAV JUDGMENT reasons to accept the version that he acted with care and caution and finally, whether there is preponderance of probability that the accused acted in good faith, (Para 10) and held that truth of imputation and publication of imputation for public good must be proved. (Para 15)
74. Public good is a question of fact. Good faith has also to be established as a fact. And fact cannot be established by mere pleadings without disclosing and producing on record the material disclosing the fact. It appears and established on record that during all these 15 years preceding the last communication published by defendants, there was not a single instance or occasion of any complaint by the defendants where in allegations against plaintiffs are proved.
75. It is certain that the communication by the defendants contain imputations and insinuations against the character of plaintiffs. The defendants have made baseless and reckless allegations. They are baseless because they have not been proved. They are reckless because the defendants have continued to allege the same facts differently and repeatedly
76. A statement, which reflects on the mental or moral character of a person, is one of relating to his personal character or conduct, whereas any criticism of a person's public activities and policies is outside it. The statement should be a statement reasonably calculated to prejudice the person against whom it was made. The word 'calculated' means designed: it denotes more than mere likelihood and imports a design to affect public at large and not done as a Page 77 of 99 C/AO/5/2014 CAV JUDGMENT criticism only, since the freedom of criticism may be sometime misused. The history of even countries like England shows that sensational false propaganda, particularly on the selected subject, person, or group of people, upset the social set up. But the advantage gained from free criticism - though sometimes it may turn out to be irresponsible - in the long run outweighs the disadvantages. It is in the interest of democracy that such criticism should be allowed. But, at any rate, it should have firmer foundation and should not be affected by passing winds. But in the case of individuals, a different approach is necessary. A campaign of slander is likely to create prejudice in the mind of the people against him. It cannot be put down as cynicism when it is sometimes said that the bigger the lie the greater is the chance of its being accepted as true. There is, unfortunately, a tendency in the minds of the unwary public to believe the worst about individuals. Democracy will be a farce if interested persons are allowed to freely indulge in character assassination. Every false allegation may not come within the meaning of mischief, however, when any false allegations of fact pierce the religious set up and touches the personal characters of any individual, then it must be made so cautiously so as to avoid any allegations like defamation when such allegations are scurrilous and do not admit of any doubt since they are defamatory per se. Every citizen is entitled to be presumed to be innocent until contrary is proved. If, therefore, an allegation of a personal character is made against anyone, it is the maker of the allegation who has to establish that there is truth in the allegation.
77. The test in each case would be whether the impugned Page 78 of 99 C/AO/5/2014 CAV JUDGMENT communication is a mere defamatory attack on the person or whether it is calculated to interfere with the due course of religious activities or the proper administration of religious endowment.
78. Alternatively, the test will be whether the wrong is done to the plaintiffs personally or it is done to the public. The publication of a disparaging statement will be an injury to the public, if it tends to create an apprehension in the minds of the people regarding the integrity, ability, or fairness of the plaintiffs or to deter actual and prospective worshipers from placing reliance upon the plaintiffs or if it is likely to cause embarrassment in the mind of the plaintiffs himself in the discharge of his duties.
79. The articles/communications in question as a whole would leave on the mind of an ordinary reader the clear impression that injustice had been deliberately done on some personal grounds to some of the persons who apparently seem to be innocent. In other words, it attributes professional dishonesty by the writer. It is unable to accept the contention that such a communication does not constitute defamation. One has to consider the natural and probable effect of the articles / communications and not only the avowed intention of the editor as indicated in his affidavit. It seems that communication in question constitutes defamatory statements with the ulterior motive rather than supporting reform activities in a particular religion.
80. The defendants have not only admitted, but boldly Page 79 of 99 C/AO/5/2014 CAV JUDGMENT asserted, and made it part of their argument, that the articles / communications may be libelous and that they could justify the libel, but they could not refer to any evidence which apparently had been adduced for the purpose of sustaining justification. Thus, the so-called evidence when not produced before the court, could not be looked into and hence, the arguments founded on it are irrelevant for this motion, since justification could not be ascertained only upon mere say without the evidence based upon which such justification is claimed.
81. The communication, promoting hatred between two classes of citizens is undoubtedly a corrupt practice and it is well settled by a long course of decisions of Apex Court that such practices must be clearly alleged with all the necessary particulars and proved not by the standard of preponderance of probabilities but beyond reasonable doubt.
82. The defendants should have acted with restraint and decorum. They failed in both. There was no good faith. The defendants cannot be said to have acted in public good. At least they have failed to prove both conditions on record except to plead the same with the plea of justification. But pleading alone is not sufficient, there must be evidence in support of such pleading and if defendants do not produce it, it must be presumed that they do not have it, whereas if the pleading says that they have got evidence to justify contents of articles / communications in question, then non production of such evidence compel to presume that such evidence is not sufficient to justify the publication for public good as pleaded Page 80 of 99 C/AO/5/2014 CAV JUDGMENT and that it cannot be believed unless its authenticity, legality, and validity is checked, in accordance with law.
83. In the case between Sewakram Sobhani vs. R.K. Karanjiya, Chief Editor, Weekly Blitz and others, reported AIR 1981 SUPREME COURT 1514, it was observed that when a bare perusal of the offending article shows that it is per se defamatory, there can be no doubt that the imputation made would lower the victims in the estimation of others. It suggested that he was a man devoid of character and gave vent to his unbridled passion. It is equally defamatory to concerned ladies that she was alleged to be a lady of easy virtue, then without dilating on the matter any further, it is observed that it is for the publisher to plead in defence and discharge the burden to prove good faith which implies the exercise of due care and caution and to show that the attack on the character of the victim was for the public good.
84. The news item in the publications under question undoubtedly contained serious imputations against the character and conduct of the plaintiffs. In order to attract the justification, the imputations must be shown to have been made (1) in good faith, and (2) for the protection of the person making it or of any other person or for the public good.
85. The things are quite clear that mere defence of justification cannot be a ground for refusal of interim injunction in any case and unless the defendants are able to show their bonafide by placing at least minimum sufficient Page 81 of 99 C/AO/5/2014 CAV JUDGMENT evidence, the plea of justification cannot be accepted. If it is accepted, as argued by the defendants, then it would be so easy for everyone to first commit an offence and then to plead for justification and therefore the Court has to take care of the situation that if the defendant does not succeed in proving his justification, then how he would make the reputation of the victim in the same status as before and as discussed above, the monetary loss is not the question in such a case of defamation where in fact, feelings of the parties are being hurt. In such a case, on considering all the rival contentions, the Court has to consider whether communication was in public interest as submitted by the defendants and that whether due care and caution was taken before publication and finally, whether there is merit in the justification of the defendant. With this reference, on reading the communication it is certain that the languages of such communication are certainly defamatory. It is not necessary to repeat the discussion made in the earlier part of this order that the defamation may be directly or indirectly. In such circumstance, looking to the allegations, communication and the specific stand of the defendants that they raised the plea of justification, it would be appropriate either to call upon the defendants to disclose and to produce all such relevant or at least the minimum concerned evidence before any public authority at first, before publishing such report, and now when the question is sub judies before the Court of law, such evidence must be placed on record to prove the justification. Else it would be easy for any person first to make a defamatory statement and then to raise a plea of justification and leaving the victim in dark only saying that they can prove the plea of justification before appropriate Court or forum.
Page 82 of 99 C/AO/5/2014 CAV JUDGMENTThereby, it is clear that though the defendants have submitted that once the plea of justification is raised, there could not be interim injunction, but with due respect, for the above reasons and discussion, it would be necessary to conclude that a simple plea of justification alone can not be a ground for refusal of injunction mainly because the prayer in such suit is to restrain repetition of similar improper & wrongful - tortuous act and therefore, it goes without saying that if the defendant is taking the plea of justification and resisting the interim application, then it is certain that the dispute of the defendants to continue such articles/communications, particularly, in the present case, when the defendants' version is quite clear that they have sufficient materials for such publication, then it would be appropriate for them to produce all such materials before the Court, which otherwise they have to produce and prove at the trial.
86. Surprisingly, it is the say of the defendants that the Court shall believe their statement that since they are in possession of some materials and even if they do not produce such materials and evidence on record, the Court is not empowered to restrain them from continuing the same act which is otherwise not only hampering, but damaging reputation of the other side when the defendants would also be well aware that at the trial of the suit, they have to produce and prove all such materials and evidence on record. Then this Court fails to understand the stand of the defendants by not producing at least the minimum materials on record.
Page 83 of 99 C/AO/5/2014 CAV JUDGMENT87. Every right has a corresponding duty or obligation and so as the fundamental right of speech and expression. The freedom conferred by Art. 19(1) (a) is, therefore, not absolute as perhaps in the case of the U.S. First Amendment; it carries with it certain responsibilities towards fellow citizens and society at large. A citizen who exercises this right must remain conscious that his fellow citizen too has a similar right. Therefore, the right must be so exercised as not to come in direct conflict with the right of another citizen: It must, therefore, be so exercised as not to jeopardise or clash with the paramount interest or the right of another citizen. In India, therefore, our Constitution recognises the need to place reasonable restrictions on grounds specified by Art. 19(2) on the exercise of the right of speech and expression. It is for this reason that the need for prior restraint has been recognised and our laws have assigned a specific role to the censors as such is the need in a rapidly changing social structure.
88. In the case of R. Rajagopal alias R. R. Gopal and another, v. State of Tamil Nadu and others, reported in AIR 1995 Supreme Court 264, the Supreme Court has held that: The rule of privacy is subject to the exception, that any publication concerning the aforesaid aspects becomes unobjectionable if such publication is based upon public records including Court records. This is for the reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes a legitimate subject for comment by press and media among others. We are, however, of the opinion that in the interest of decency (Article Page 84 of 99 C/AO/5/2014 CAV JUDGMENT 19 (2)) an exception must be carved out to this rule, viz., a female who is the victim of a sexual assault, kidnap, abduction or a like offense should not further be subjected to the indignity of her name and the incident been published in press/media.
89. Thus an actionable wrong has been committed by the defendants since the communication in dispute had caricatured the reputation of the plaintiffs and that the defendants threatens or intends to continue or repeat the communication of the offending material, and that there is a prospect of such immediate and pressing injury to a person or to property by the defendant's proceedings which has made it desirable that this court should interfere. In the circumstances the court will not interfere by way of injunction only if the plaintiffs have dis-entitled himself to equitable relief, for example, by delay or laches or by acquiescence.
90. However, considering the subject, it cannot be ignored that the aim of the defendants is not bad if the allegations against the persons named in such communication are found to be true. So, since the desire as shown in the defence version by the defendants is to find out the scam and not to focus any person, if taken into consideration, then liberty is required to be given to the defendants for publishing appropriate communication, but with certain conditions as stated in the operative part of this order such as - (i) the defendants must disclose and produce the evidence available with them in public record in any appropriate form or manner before any Court or Authority; (ii) the defendants shall not Page 85 of 99 C/AO/5/2014 CAV JUDGMENT refer any name in any manner so far as it relates to plaintiffs, unless and until they have got specific evidence against any plaintiffs and again, after complying with the above condition, i.e., to make such evidence available with them to be on the public record in any appropriate form or manner before any Court or Authority. The reasons for such conditions are quite clear that once the materials and evidence available to the defendants are made available to the public to examine the same and thereby, to fix the status of such evidence with the defendants, not to alter, change or tamper with it thereafter and thereby, succeed in their pleading of justification as well as excuse that may be available against the action or tortuous act of defamation by any person because, the libel in India could not and should not permit any one to first commit an offence and then to say that he has no excuse or justification for such an act and thereby, allowing the victim to suffer personally, physically, mentally or even monetarily in any form or in any nature.
91. Society is composed of individuals having varied conflicting interests. These interests have to be controlled and regulated so that there would be order and peace in society. Here comes law. It is a system of norms and rules, ideas and principles towards which people wronged would naturally look for redress. Law redress the grievances of a complainant by ordering the wrongdoer to do a particular thing or to refrain from it or by ordering him to pay money as compensation to the sufferer. This position does not follow automatically or as a matter of course because law does not do anything without reason. Crooked or twisted conduct of a Page 86 of 99 C/AO/5/2014 CAV JUDGMENT member of society occasion's loss or damage to another. But law does not redress all the cases occasioning loss. Either the loss occasion must lie where it is or it ought to be transferred on to the shoulders of the wrongdoer. Therefore, if someone prays to restrain the other from continuing the acts resulting into loss to him, it cannot be said that such person should not be restrained by prohibitory order more particularly when he fails to prove on record that he has reason to act accordingly or that though his act is resulting into the loss to the plaintiffs, is not responsible to such loss because his act is either in good faith or justified or that he is entitled to act accordingly because of any specific rights and privilege. In that case, such privilege must be absolute and prove on record.
92. In the present case, the defendants have failed to prove their absolute right, privilege, or truthfulness of the defamatory communication or their good faith or even justification as pleaded.
93. Applying the above principles, it must be held that the defendants have a right to publish and communicate what they allege to be true and justified in their good faith for discloser of any criminal offence or scam in so far as it appears from the public records, even without consent or authorisation of anybody. But if they go beyond that and publish and communicate any defamatory material against any person(s), which otherwise gives rise to the cause for complaint or litigation, they may be invading right to privacy, which if results in to defamation, will be liable for the Page 87 of 99 C/AO/5/2014 CAV JUDGMENT consequences in accordance with law. Therefore, it is necessary to prevent or restrain such publication and communication and it cannot be said that the remedy of the affected persons, if any, is after the publication only to file appropriate complaint or litigation.
94. If we peruse the impugned judgment rejecting the application for interim relief as prayed for, it becomes clear that the defence of the defendants is mainly absolute privilege to communicate in certain manner. The defendants have also relied upon Section 41 of the Specific Relief Act which provides that an injunction cannot be granted to restrain any person from prosecuting judicial proceedings pending at the institution of the suit in which the injunction is sought, unless such restrain is necessary to prevent multiplicity of the proceedings. Therefore, when the plaintiffs have prayed to restrain the defendants from filing any fresh litigation/complaint, after discussing rival submissions and citations, the Trial Court came to the conclusion that the tortuous acts by way of pleadings in the several judicial proceedings are absolutely privileged. The trial court has also observed that the documents produced on record do not show any defamatory allegations as alleged by the plaintiffs. For making such observations unfortunately the trial court has as stated the reason that since defendants have not made any communication with the plaintiffs and whatever communication made by the defendants is with the authorities, there cannot be a defamation by the plaintiffs. However, the trial court has failed to consider the basic principle of defamation that defamatory statement on the face of victim is not must for treating such statement as Page 88 of 99 C/AO/5/2014 CAV JUDGMENT defamatory and to initiate proceedings against such defamatory statement. It seems that trial court has strongly relied upon the interpretation of word "arbitration" used by the defendants in one of the communication, when it was argued that though there was no arbitration proceedings, the plaintiffs have referred to such proceedings and thereby plaintiffs have stated false facts. The trial court has also relied upon some discrepancy in one of the documents being power of attorney deed which is produced on record at Mark- 19/19 and therefore, the trial court has held that plaintiff has not come before the court with clean hands. Moreover, when the plaintiff has prayed for damages to the tune of Rs.10,000 crores, the Trial Court has held that when the plaintiffs have assessed the amount of damage, it cannot be said that loss to the plaintiffs cannot be compensated in terms of money.
95. A discussion herein above makes it clear that in such case even though damages are claimed, interim relief is required to stop the continuous defamation and multiplicity of proceedings since for every new defamation, there would be a separate cause of action. Therefore, in all cases where damages are claimed, more particularly, in a suit like present, it cannot be said that when damages are claimed, interim relief cannot be granted. The Trial Court has also relied upon the observations by this Court in OJ Appeal No.107 of 2009 wherein liberty was given to the defendants to initiate appropriate proceedings before appropriate forum in accordance with law. However, the trial court has failed to understand that granting liberty to initiate appropriate proceedings cannot be termed as a license or permission to defame anybody. The Trial Court has also failed to consider Page 89 of 99 C/AO/5/2014 CAV JUDGMENT that defence in judicial proceedings is not having absolute privilege inasmuch as even in the pleadings, the facts which are not correct and which cannot be proved, cannot be included. In other words, there is no absolute privilege even in pending litigations. For the purpose, defendants and Trial Court have relied upon a decision dated 31/07/2013 between Nau Nihal Singh Rana v. Sunil Kumar in CS (OS) No.1359/2011, reported in 2013 (202) DLT 465; wherein considering the rule of absolute privilege from several reported cases, the Delhi High Court has observed that rule of absolute privilege with regard to Civil Suit for defamation against the judges, counsels, witnesses and parties was still applicable in the United Kingdom. However, Trial Court has misconceived itself when the same judgment is also categorically discussed that the privileges extended for words written or spoken in the ordinary course of proceedings before any court or institution recognised by law. Therefore, what is the manner of communication in ordinary course of proceedings is to be understood properly which makes it clear that in any case it does not include defamatory statement in any manner. Day in day out in pleadings as well as during submissions it is repeatedly stated that "the trial court has not applied its mind", then such allegations are to be treated as being used in ordinary course of proceedings but to allege that particular "judgment is obtained by money power"
cannot be treated in ordinary manner and privilege cannot be claimed for such written or spoken words in any proceedings before any court, more particularly if there is no evidence to that effect.Page 90 of 99 C/AO/5/2014 CAV JUDGMENT
96. During the course of argument, defendant, party-in- person was made to realize the difference between the words "murderer" and "accused of a murder". It is clear that unless on convicted, the person is to be called as "accused of a murder" but not as a "murderer". Similarly if there is acquittal of charges of murder, then thereafter except in an appeal against acquittal naming any such person as murderer would certainly amounts to defamation. Whereas even in an appeal against acquittal again that person is to be named as accused and not as murderer.
97. The Trial Court has relied upon several decisions wherein injunction was refused on different grounds but it is not certain that in all such cases injunction was refused against defamatory statement or because of defence of absolute privilege. The Trial Court has also relied upon the complaint filed by the defendants before the CBI, Gandhinagar for alleging fraud of rupees 10,000 crores by the plaintiffs when CBI, Gandhinagar had stated that necessary action shall be taken by the Mumbai Police. However, trial court has failed to consider the outcome of such complaint, which is practically stayed by the Bombay High Court. Details of which is recorded herein above.
98. The Trial Court also seems to be influenced by the submission of the defendant that since he is honoured by Government of Gujarat for rendering his services to the societies by donating his blood for 92 times, however, the trial court has failed to realize that donation of blood for 92 times does not change the legal position or even the attitude and Page 91 of 99 C/AO/5/2014 CAV JUDGMENT information of such person when there is personal interest. However, it cannot be ignored that even trial court has to observe that some of the words used by the defendant Mr. S. V. Parekh during the proceedings before the Court are hard and harsh in nature. Though the Trial Court has not considered such words within the meaning of defamation when the Trial Court has observed that defendant is a person who used to call a spade a spade, makes the defendant more aggressive and violent and arguing boldly that when he has been awarded by the Government of Gujarat, there cannot be any question against his activities and that all other authorities shall honour him for donating blood for 92 times and there cannot be any order against him. Unfortunately it has been observed that defendant no.1 does not able to understand the sense of text in proper manner and use the words abruptly and considered and interpreted every text suitably in his favour. Such fact can be ascertained from his argument which is accepted by the trial court that when there is an observation in the judgment by this High Court in OJ Appeal No.107 of 2009 that defendant has been given liberty to adopt appropriate proceedings in appropriate forum, he can file any litigation with any allegation.
99. However, both the defendant and Trial Court have failed to read such order properly wherein ultimately it is stated that any such proceedings shall be in accordance with law. Thereby if law does not permit to defame anybody in any manner then only because of such observation it cannot be said that defendant is permitted to defame the plaintiffs in different communication and proceedings.
Page 92 of 99 C/AO/5/2014 CAV JUDGMENT100. Difference between pleadings and defamatory pleadings need not require to be discussed at this stage since both the parties have yet to adduce the evidence before the Trial Court. However, above discussion has made it clear that complaint regarding fraud by the plaintiffs has already been quashed by the High Court and similar complaint before Maharashtra Police stand stayed by the Bombay High Court and therefore, at the most plaintiffs are accused of some offences but they cannot be termed as convict of such offence and when complaint regarding scam is sub judies before the Bombay High Court, same allegations in defamatory language forwarded to different authorities would certainly term as defamation when first complaint is already quashed by the High Court.
101. During the course of the argument, the defendant has emphasized that because of the proceedings between the parties, he is unable to donate the blood and it would result into loss of several lives and therefore, plaintiffs should be held responsible for murder of such person/beneficiary of his proposed blood donation. Similarly it is also surprising to note that so far as issue regarding transfer of shares by defendant no.2 in her own name in different manner is concerned, the stand of the defendant is to the effect that if plaintiff could not transfer or does not want to transfer shares as per their request, then they should have instead of consolidating of the shares together and offering only one set of preferential shares, must have conveyed the defendants accordingly so as to allow her to transfer the shares in name of their daughters so as to enable them to have more preferential shares. Even if the rule regarding transfers of Page 93 of 99 C/AO/5/2014 CAV JUDGMENT shares provides for intimation of objections before refusal of transfer, such rules are for technical and clerical mistakes and not for illegal or immoral activities. Therefore, the defendant is admitting his attitude of getting advantage of transferring single share in different name for getting more preferential shares. In addition to such factual submissions, averments, pleadings and arguments by the defendant leads the court to come to the conclusion that if such practice is continued by the defendant, then probably some authorities may refer him to the medical board constituted under the Mental Health Act for examination and submitting the report about health of defendant no.1. Practically only after such discussion defendant has remained in control from abrupt and irrelevant argument. Suffice it to say that unless there is an evidence regarding commission of offence by anyone, alleging that such person has committed such offence and communicating such allegations to different authorities so as to hamper the business activity of such person would certainly amounts to defamation and as discussed herein above, if such acts are repeated, then it should be restrained being continuous defamation. In the present case allegation regarding scam are not proved in the complaint before the Court and in second similar complaint before the CBI, which was forwarded for investigation to Maharashtra Police has been stayed by the Mumbai High Court. Therefore, now unless competent court held the plaintiff is guilty of scam, repeated allegation by different communication to different authorities that plaintiffs have committed scam is nothing but intentional liable and slander amounting to defamation of the plaintiffs.
Page 94 of 99 C/AO/5/2014 CAV JUDGMENT102. The Trial Court has also observed that defendant may avail appropriate in remedy available to him under the law and if any Court during the judicial proceedings finds that such act is abuse of process of law, then concerned Court would enforce appropriate punishment to the defendant and therefore, injunction cannot be granted. Suffice it to say that this principle can apply only with reference to the prayer wherein the plaintiffs have prayed to restrain the defendant from initiating judicial process. However, if we consider the same aspect properly then it is to be believed that if similar allegations are repeatedly conveyed and communicated to different authorities without proper proof whatsoever and more particularly when one competent Court has quashed the complaint, it certainly amounts to tortuous act and it is settled legal position that Court has to restrain the continuous tortuous act to avoid multiplicity of the proceedings and further damage, which cannot be calculated in terms of money.
103. The defendant has repeatedly argued that since plaintiffs have filed 300 caveats against him, there must be prima facie case in his favour else plaintiffs would not have filed 300 caveats before different courts throughout the country. Only because plaintiffs have filed 300 caveats against defendant before different courts, it cannot be said that plaintiffs do not have prima facie case in their favour. It is obvious that on one side defendants want permission to file any litigation with any allegations against the plaintiffs and contrary to it, he has objecting the filing of caveat wherein the only statement is a request to the court to hear the caveator before passing any ex parte order without any blame Page 95 of 99 C/AO/5/2014 CAV JUDGMENT or allegation against the defendants.
104. While granting interim relief in the present appeal by an order dated 11/12/2013, the defendant was restrained from disclosing or publishing or writing anything in any manner whatsoever in defamatory manner so as to defame the appellant in any manner without disclosing such fact, nature of information and its source first before this Court, considering the fact that defamation cannot be allowed to be continued by the defendants when the matter is sub judice before the Court of law. Pressing the said relief, the defendant has filed Civil Application No.1219 of 2014, however, the pleadings are in such a manner which does not give any sense and practically instead of confirming that what information or detail is to be disclosed or published by the defendant, the defendants have prayed to direct the plaintiffs to pay certain amount towards compensation and to deposit Rs.4.5 crores in bank FDR in the name of defendants before this Court. In short, all such averments are either irrelevant or without substance but in any case either to prove certain things or to disprove the plaintiffs' case.
105. The plaintiffs have also filed a draft amendment on 10/12/2013, however, considering the disposal of the main appeal, such draft amendments are not required and therefore, same is filed.
106. The defendants have also filed one document heading Misc. Civil Application under Section 498 of CRPC in this Appeal From Order when similar type of lengthy pleading and Page 96 of 99 C/AO/5/2014 CAV JUDGMENT text praying to file a criminal case or to direct the registry of High Court to file criminal case against as many as 24 persons though some of them are not parties before this Court in present appeal. It is alleged in such application that plaintiffs and all other persons named in such application illegally and deliberately hide forged documents with many material facts to get justice in their favour. It is clear that for any such criminal offence, defendant has to file a complaint before the competent authority, however, one such complaint by the defendant has already been quashed by this court and similarly complaint before Bombay police station stayed by Bombay High Court therefore, probably knowing fully well about their position, defendants, instead of filing appropriate complaint if at all they have some evidence with them, communicating different allegations to different authorities in different manner as discussed herein above.
107. Reference to the decision between Reckitt & Colman of India Ltd. v. M. P. Ramchandran and Anr. reported in 1999 (19) PTC 741 makes it clear that if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining repetition of such defamation.
108. In the decision between Three Cheers Entertainment Pvt. Ltd. v. C. E. S. C. Ltd., reported in AIR 2009 SC 735 though Appeal before the Apex Court is against the order of imposing penalty and sentence for the alleged contempt, the fact remains that in a defamation suit but also a decree for Page 97 of 99 C/AO/5/2014 CAV JUDGMENT permanent injunction, an interlocutory application marked as G.A. 1812 of 2004 an ex parte ad interim order of injunction was granted and the same was not disturbed even by the Apex Court. Thus it cannot be said that there cannot an injunction against defamatory communication.
109. In the decision between West Bengal State Electricity Board v. Dilip Kumar Ray reported in AIR 2007 SC 976 though Apex Court has set aside the judgment and decree awarding damages for malicious prosecution (since it was against Departmental Inquiry, which was ultimately dropped by the employer), the observation regarding malice and malicious prosecution are material in as mush as in the present case also plaintiffs are claiming that defendants are selecting malicious proceedings which amounts to defamation.
110. Thus, the plaintiffs have got prima facie case in their favour. The balance of convenience is also in their favour and in absence of interim injunction as prayed, they would have to suffer irretrievable injustice and hence, they are entitled to the interim relief as prayed for but with liberty to the defendants to publish or communicate facts which are proved on public record, upon following conditions -
[1] Produce all evidence based upon which any such communications are published / communicated in any manner or to be published or communicated in any manner in future, before Trial Court;
Page 98 of 99 C/AO/5/2014 CAV JUDGMENT[2] Not to refer or disclose the name of plaintiffs in any manner;
111. Thereby defendants are here by restrained from communication and publication of defamatory statement in any form viz; oral or written, in any kind of publication viz; print media or electronic media or broadcasting media without having evidence which is proved on public record. The defendants must realize the meaning of "evidence proved on public record".
112. Therefore, this appeal deserves to be allowed partly by restraining the defendants with certain conditions in above terms and it is hereby allowed to that extent. Civil Applications for stay stands dispose of accordingly.
113. Pending this Appeal From Order, the appellant has filed draft amendment whereas respondent has filed several unnumbered applications for different reliefs including relief to expedite the suit at the earliest claiming that he is senior citizen and therefore, his suit should be expedited. However, since, Appeal From Order is disposed of as aforesaid, all such applications are disposed of accordingly. The parties may apply before the trial court for appropriate orders, if so required.
(S.G.SHAH, J.) *Pansala / Ila Page 99 of 99