Delhi District Court
Sh. Roshan Lal Chopra vs Sh. H.D. Joshi on 31 May, 2008
SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI
IN THE COURT OF PAWAN KUMAR JAIN
ADDITIONAL DISTRICT JUDGE, FAST TRACK COURT,
DELHI
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Old Suit No. : 61/99
New Suit No. : 438/06
Date of Institution of case : 11.05.99
Date of transfer to this court : 20.11.06
Judgment reserved on : 28.05.08
Date of decision : 31.05.08
IN THE MATTER :
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SH. ROSHAN LAL CHOPRA
S/O SH. (LATE) GANGA RAM CHOPRA
MANAGING DIRECTOR
M/S BENTEX INDUSTRIES
B-65(1) NARAINA INDUSTRIAL AREA PHASE-II
NARAINA-NEW DELHI-110 028.
..... PLAINTIFF
VERSUS
SH. H.D.JOSHI
C/O M/S BHARAT PLASTIC INDUSTRIES
A-92/3, NARAINA INDUSTRIAL AREA PHASE-I
NEW DELHI-110 028.
..... DEFENDANT
SUIT FOR COMPENSATION OF RS. 5,00,000/-
AS DAMAGES FOR DEFAMATION
RERERERERERERER
Present: Sh. S.C. Juneja, Ld. Counsel for plaintiff
Sh. Vijay Chawla, Ld. Counsel for defendant
RERERER RERERER RERERER
Page 1 of 25
SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI
JUDGMENT
1. Admitted facts of the case are that plaintiff was a Chairman of Permanent Building Management & Funds Committee (hereinafter referred as Committee) as well as member of the Naraina Industries Association, Phase-I & II (hereinafter referred as Association). Plaintiff is also the Managing Director of M/s Bentex Industries while the defendant is the General Secretary of the Association.
(i) It is also undisputed fact that being the Chairman of the Committee, plaintiff had written two letters dated 5.9.1998 & 9.9.1998 to the President of the Association seeking certain clarification on certain points to convey the same to the members of the Committee. In response to the said letters, defendant had written two letters dated 17.09.98 & 23.09.98 to the plaintiff, copy of which were also sent to all members of the Association.
2. Controverted facts of the case are that plaintiff alleged Page 2 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI that defendant had used derogatory, unparliamentary, abusive and defamatory language in the letters dated 17.9.98 & 23.9.98, which caused loss of reputation to the plaintiff among the members of Association, among his staff and in the society at large. It is further alleged that in both the letters, defendant had made false allegations against the plaintiff with malice to lower down his reputation in the society. Plaintiff has enumerated the alleged defamatory allegations in para 11 of his plaint. It is further alleged that the defendant had written both the letters in his individual capacity. Aggrieved by the letters in question, plaintiff filed the present suit for the recovery of Rs.5,00,000/- alongwith pendente lite and future interest @ 24% per annum.
(i) On the converse, defendant's case is that on receipt of letters from the plaintiff, a meeting of Executive Committee of the Association was held on 10.09.1998, wherein the letters sent by the plaintiff were discussed and defendant being the General Secretary of the Association was authorized to send the reply to the plaintiff. It is alleged that in discharge of the duty of General Secretary, defendant had written both the letters dated 17.9.98 Page 3 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI and 23.9.98 to the plaintiff and there was no malice on his part to defame the plaintiff. Defendant also regretted, if the contents of the said letters amount character assassination of the plaintiff. It is stated that though plaintiff had sent several other letters between 22.9.98 to 22.11.98 to the Association with intention to inflame the situation yet in order to calm down the situation, no action was taken on the said letters. It is further stated that the plaintiff had also levelled false and frivolous allegations against the Association in his letters dated 5.9.98 & 9.9.98 and in order to rebut the said allegations, defendant had sent the letters in question being the General Secretary of the Association.
(ii) In addition to the above, it is alleged that when the second and third floors of the building of the Association were vacated by the previous tenants, it was decided with the consent of the plaintiff that the vacated premises should be let out to generate the fund to run the Association. Accordingly, the Executive Committee of the Association started negotiating with the State Bank of India to let out the vacant premises on rent.
But all of sudden, plaintiff had retracted from the earlier decision Page 4 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI and started making false allegations against the Executive Committee and even wrote the bank not to take the premises on rent otherwise bank would have to face the litigation. It is further stated that the suit is bad for non-joinder of Association as the letters in question were issued on behalf of the Association.
3. Vide order dated 20.08.99, following issues are framed:
(i) Whether the plaintiff is entitled to recover the damages from the defendant as per details made in the plaint ? OPP.
(ii) Whether the suit is bad for non-joinder of the parties, if so, its effect ? OPD.
(iii) Whether any cause of action has arisen in
favour of the plaintiff and against the
defendant ? OPP
(iv) Relief
4. To prove his case, plaintiff examined following witnesses :-
PW1 Sh. Roshan Lal Chopra, plaintiff himself. PW2 Sh. Girdhari Lal Jaisingh Page 5 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI PW3 Sh. Jagdish Kumar In counter defendant examined himself as DW1 and Sh. K.C. Kapur as DW2.
5. I have heard Ld. Counsel for the plaintiff and Ld. Counsel for the defendant at length, perused the record alongwith written submission filed by the plaintiff carefully and gave my thoughtful consideration to their contentions. My issue-
wise findings as under:
6. ISSUE No. I Onus to prove the said issue was upon the plaintiff.
(i) Ld. Counsel for the plaintiff contended that the defendant had used derogatory and defamatory language in his letters dated 17.9.98 & 23.9.98 with an intention to defame the plaintiff among the members of Association and public at large.
It is further urged that the defendant had circulated the said letters among all the members of the Association. It is further Page 6 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI argued that the defendant had made false allegations in the said letters without any basis, thus the defendant had malice to defame the plaintiff.
(ii) Ld. Counsel for the defendant refuted the said contentions by arguing energetically that the letters in question are protected under the umbrella of qualified privilege as the same were written by the General Secretary of the Association. To support his contention, heavy reliance is placed on the judgment title The Punjabi Bagh Co-operative Housing Society Limited Vs. K.L. Kishwar & Another reported in 2002 (61) DRJ 594. It is further argued that there was no publication of the said letters as the plaintiff himself had circulated the copy of said letters to the members of Association. It is further urged that the said letters were written by the defendants in response to the letters of plaintiff, thus there was no malice on the part of defendant and defendant had written the said letters in discharge of the function of General Secretary of the Association.
Page 7 of 25
SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI
7. First question arises for adjudication as to whether the letters in question are defamatory in nature or not ? 'Defamation' has been defined in Salmond & Heuston on the Law of Torts, 20th Edition, R.F.V. Heuston and R.A. Buckley, page No.145 as below :
"A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refer; which tends, that is to say, to lower him in the estimation of right-thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society. Hence the test is an objective one, and it is no defence to say that the statement was not intended to be defamatory, or uttered by way of a joke. A tendency to injure or lower the reputation of the plaintiff suffices, for" If words are used which impute discreditable conduct to my friend, he has been defamed to me, although I do not believe the imputation, and may even know that it is untrue."
At page no.148, Author further states :-
"At common law, it was not necessary that the defendant should have intended the defamatory statement to refer to the plaintiff. The question was not whether the defendant intended any such reference, but whether any person to whom the statement was published might reasonably think that the plaintiff was the person referred to. Nor was it any defence that the defendant had no reason to suppose that any such reference would be Page 8 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI attributed to his words, or even did not know that any such person as the plaintiff existed. . . . . "
8. Seeking guidance from the above settled proposition of law, the impugned letters will be analysed to ascertain as to whether the same are defamatory in nature or not. Impugned letter dated 17.09.1998 and 23.09.1998 are marked Ex.DW1/P1 & PW3/DX4 respectively. The objectionable portion of the first letter is reproduced as under :-
"In the end, I sincerely feel that you will be able to correct your erroneous misconceptions and will be able to purify your thoughts and ideas because polluted thought-process dues not reach any where and creates more complicated confusion. I shall appreciate if you, instead of misleading the members of the Association, start thinking positively and working constructively for the furtherance of progress and prosperity of the Association.
........................................................................................ Copy to all members of Naraina Industries Association Phase I & II for their kind perusal with the request that Hon'ble Members should not be got misled with the false, unfounded, baseless and mischievous propaganda of undesirable, frustrated and disgruntled elements with the sole intention of mud-throwing on good workers and hiding their own misdeeds. More information in this respect will be sent to the Members subsequently."Page 9 of 25
SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI
(i) Similarly, the objectionable portion of letter dated 23.09.1998 reads as under :-
"In case of the Building Management and Fund Committee of our Association, as has already been mentioned in my letter of 17th September, 1998 addressed to Shri R.L. Chopra I would like to reiterate that the Building Management and Fund Committee had not been carrying out the decisions taken by the Executive Committee and at times had been demonstrating gross insubordination ignoring the decisions taken by the Executive Committee. The Committee not only created obstacles in the implementation of the decision of the Executive Committee but also manipulated the funds in accordance with the whims and fancies of only a few persons (only three or four). It will be relevant to mention that since the inception of the Committee, three or four persons, who had no faith in democratic value made misuse of the resolution passed by the General Body about the constitution of Building Management and Fund Committee and started managing the affairs of the building in their own interest instead of overall interest of the members of the Association. The persons designated themselves as Chairman, Vice-Chairman, Hony. General Secretary and Treasurer of the Committee and functioned in an autocratic manner by converting the Committee in the form of a self-made exclusive club for fulfilling their own interest. Now the position is such that out of 21 members, the committee is attended hardly by four or five persons and and its main purpose has become confined to obstruct the day to day working of the Executive Committee in order to fulfil the dictates of their own whims and fancies. It will not be wrong and Page 10 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI exaggeration if I say that these four person had started to demonstrate their' dadagiri' by calling themselves the supreme commanders of the building of the Association and made the working of the Executive Committee almost impossible. You must be aware that out of 21 members of the Building Management and Fund Committee, many have left the Naraina Industrial Area. A few have expired and because of autocratic and undemocratic attitude of this exclusive club of four persons, many have stopped taking interest.
......................................................................................... ............................................................................... In the end, I would also like to place on record that these few persons are trying to bring down the image of devoted and dedicated workers of the Association in the eyes of the people for the sake of their own pleasure without any logical and rational consideration. I shall request Hon'ble Members and colleagues not to get misled by unfounded, baseless and undesirable propaganda based on their personal agenda."
9. Cursory reading of the said letters reveals that defendant had levelled certain allegations against the plaintiff, which are sufficient to establish that same had tendency to cause injury to the reputation of the plaintiff to whom the same had been referred and are also sufficient to lower him in the estimation of right-thinking members of society, especially among the members of the Association. Considering the contents of the impugned letters, I am of the opinion that the same are Page 11 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI defamatory in nature.
10. Core contention of the Ld. Counsel for the defendant is that the said letters are covered by the protection of qualified privilege, thus defendant is not liable for any damages and in support of his contention, Ld. Counsel relied upon the judgment Punjabi Bagh Co-operative Housing Society's case (supra).
11. Perusal of the said judgment reveals that in the said case defendants were members of the plaintiff society, while plaintiffs no. 2 to 5 were the office bearers of the society. As defendants were not satisfied with the working of the office bearers, thus they made certain complaints against the society and its office bearer before the Joint Registrar of the Society and also sent certain letters to the office bearers also wherein they alleged some allegations against the office bearers, which were per-se defamatory. In the light of these facts, it was held that :
"The Joint Registrar, under the Societies Registration Act has the authority to look into the grievances of the members of the registered society Page 12 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI as also the conduct of affairs of the society by its office bearers. Therefore, if any member of the society makes a complaint against the office bearers of the society regarding the affairs of the society and in the process makes some defamatory statements only in regard to the conduct of such office bearer in the management of the aforesaid society such accusation cannot constitute defamation ..............no action for defamation would lie against the defendants. If a member of the society has reason to believe that some irregularity, illegality if being committed in the running of the affairs of the society, such member of the society is under a duty to bring it to the notice of the officer bearer of the society or other authorities having control over the society. Such member will have an obligation cast on him to bring such things to the notice of the society and vice versa office bearers or other such authorities will be under obligations to receive such complaints and look into them.
..................................................................................... ......................Viewed in this legal perspective, I think the alleged defamatory statements made by the defendants in their various communications/petitions to the plaintiffs or to the Joint Registrar or other authorities having control over the aforesaid Society fall in the category of privileged communication and no action for defamation will be maintainable."
1. To my mind the said judgment is not applicable in the facts of the present case as in the instant case impugned letters were not sent to any authority. On the contrary, the letters were sent by the authority i.e. General Secretary of the Association to Page 13 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI the members including plaintiff. Defendant had not made any complaint to any authority for redressal of his grievances but he got circulated the said letters among all members of the Association. Thus, in my opinion the said judgment is not helpful to the defendant in any manner.
2. Next contention of the defendant was that he had written the said letters in performing his duties as General Secretary of the Association
3. It is admitted case of the defendant that the executive committee of the Association had discussed the letters dated 5.9.98 and 9.9.98, sent by the plaintiff to the Association and defendant was authorised by the Executive Committee to send suitable reply to the plaintiff. DW1 in his cross examination admitted that on 10.9.98, when Executive Committee authorised him to send the suitable reply to the plaintiff, the draft of the letters in question were not ready. Though he deposed that the contents of the letters were discussed in the meeting yet he failed to produce any concrete evidence on record to establish that the Page 14 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI contents of the proposed reply were discussed in the meeting. Though the defendant had produced the minutes book of the meeting of Executive Committee yet he failed to show any resolution passed in the meeting to establish that the contents of proposed reply were discussed in the meeting. In the absence of any concrete evidence on record, the testimony of DW1 to the extent that the contents were discussed in the meeting does not inspire any confidence. Merely fact that the Executive Committee had permitted the defendant to send the reply to the plaintiff does not mean that the Executive Committee had permitted the defendant to use derogatory and defamatory language in the letters.
(i) Assuming for the sake of arguments that the defendant had used the derogatory and defamatory language with the consent of members of Executive Committee. Even then to my mind, the defendant cannot be exonerated from his liability because he could easily refuse the proposal of the Committee to use derogatory and defamatory language. There is nothing on record to show that defendant had expressed his willingness not Page 15 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI to use derogatory and defamatory language in the reply. There is no ioto of evidence to establish that defendant had sent the draft of impugned letters to the members of Executive Committee for their approval. From the facts and circumstances of the case, it is culled out that defendant had himself used the defamatory language in the letters in question. Merely fact that Executive Committee had permitted him to send the suitable reply to the plaintiff does not mean that defendant had acquired any right to use derogatory and defamatory language in the letters. To use derogatory and defamatory language is not the function of the General Secretary of the Association. As defendant was holding the responsible position in the Association, it was his duty to restrain himself at the time of using such language in the said letters. But instead of he preferred to use defamatory language with free pen.
(ii) It is undisputed fact that the plaintiff had sought some information from the Association through his letters dated 5.9.98 and 9.9.98. In response of the said letters, defendant had written the letters in question. Being the member of the Association as Page 16 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI well as Chairman of the Committee, plaintiff was within his right to seek clarification from the Association, if plaintiff had some doubt over the functioning of the Association and its office bearer. If the Executive Committee felt that the plaintiff had sent the letters just to harass the office bearers of the Association, it was within the power of the Association to decline the request of plaintiff. Association could inform the plaintiff that plaintiff was not entitled for any such information and if he had any grievance, he might call meeting of General Body of the Association. But neither the Association nor the defendant had any right to use derogatory and defamatory language in the letters addressed to the plaintiff, copy of which were sent to all the members of the Association.
(iii) Considering the above discussion, I am of the opinion that the said contention is not tenable.
4. Next contention raised by ld. Counsel for defendant was that there was no publication in the present case. On the contrary, plaintiff himself had circulated the copy of impugned Page 17 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI letters to the members of Association, thus it is urged that defendant is not liable for the defamation.
5. Admittedly on receipt of letter dated 17.09.1998, plaintiff had sent the letter dated 22.09.1998, which is marked Ex.PW1/8 to the defendant and also sent the copy of the said letter alongwith the copy of letter dated 17.09.1998 to all members of the Association with the request to the members to go through the said letter and decide themselves whether the man of such calibre who cannot refrain from using unparliamentary and derogatory language is deserved to hold the august office of General Secretary of the Association. DW1 in his cross examination admitted that he had sent the copy of both the letters dated 17.09.1998 and 23.09.1998 to all the members of the Association. Circulation of the said letters among the members of Association amounts publication for the purpose of defamation. Merely fact that the plaintiff had sent the copy of letter dated 17.09.1998 alongwith his letter dated 22.09.1998 does not sufficient to exonerate the defendant from his liability. Even in the said letter the plaintiff had lodged his protest over Page 18 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI the language used in the said letter. Plaintiff had sent the copy of letter dated 17.09.1998 to the members to decide whether the person, who cannot refrain from using unparliamentary and derogatory language in his letter is deserved to hold the august office of the General Secretary of the Association. To my mind, letter dated 22.09.1998, does not exonerate the defendant from his wrongful act and his liability thereof.
6. In view of above discussion, I am of the opinion that the said contention is without any substance.
7. During the course of trial, defendant failed to adduce any evidence to establish that the allegations levelled against the plaintiff in the letters dated 17.09.1998 and 23.09.1998 were not false. This shows that the defendant had levelled the allegations against the plaintiff without any basis.
8. Pondering the ongoing entire discussion, I am of the opinion that both the letters dated 17.09.1998 and 23.09.1998 are defamatory in nature and do not fall within the four corner of Page 19 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI qualified privilege, thus defendant is liable to pay compensation to the plaintiff.
9. Plaintiff has claimed compensation to the tune of Rs.5,00,000/- on the ground that he has been carrying good reputation in the society more particularly in the business community in the Naraina Industrial Area and plaintiff is the Managing Director of a reputed company and his company paying income tax between Rs.15 to Rs.25 lakh per annum. It is also undisputed fact that plaintiff was the Chairman of Committee while defendant was the General Secretary of the Association and during the relevant time there was some differences between the two bodies. Due to the said differences, the above communication had taken place between the parties. There is nothing on record, which may show that the defendant had any personal grudge against the plaintiff. It is also undisputed fact that in the subsequent election of the Association, plaintiff had lost the election while defendant had won the same with thumping majority. Though plaintiff took the plea that he had boycotted the election yet it proves that there Page 20 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI was some differences between the two bodies. It is also undisputed fact that the letters in question were sent in response to the letters sent by the plaintiff to the Association. Thus, the germane of the impugned letters was the letters sent by the plaintiff. Considering all these facts, I am of the view that there was no malice on the part of the defendant, thus defendant is not liable for punitive damages. Keeping in view the nature of communication between the parties and entirety of the facts and circumstances of the case, I am of the opinion that the damages to the sum of Rs.1,00,000/- will the ends of justice.
10. In the light of the aforegoing discussion, I decide this issue in favour of plaintiff and against the defendant.
11. ISSUE No.2 Onus to prove the said issue was upon the defendant.
(i) Ld. Counsel for defendant contended that the suit is bad for non joinder of the parties as in the present case, Association was a necessary party in whose behalf the letters in question Page 21 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI were sent to the plaintiff. Ld. Counsel for the plaintiff countered the said contention by arguing that the said letters were sent by the defendant in his personal capacity as the defendant had not mentioned his designation below his signature in the said letters, thus it is argued that the Association was not the necessary party.
(ii) Perusal of both the letters reveals that the defendant had not mentioned his designation below his signature in the letters in question. However, it further reveals that both the letters were written on the letter head of General Secretary of the Association. This shows that both the letters were sent by the General Secretary of the Association and not by any individual. Moreover, during the trial defendant had also produced the minutes book of the meeting of Executive Committee wherein plaintiff was authorised to send the suitable reply to the plaintiff. In these circumstances, I am of the opinion that both the letters were sent by the defendant being the General Secretary of the Association and not in his personal capacity.
(iii) Merely the fact that the letters were sent by the Page 22 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI defendant being the General Secretary of the Association, does not mean that the Association was necessary party in the present case. It only shows that Association was also one of the concerned party. However, it is prerogative of the plaintiff to decide to whom he intends to sue for the redressal of his grievances. The facts of the present case are not such where no relief can be granted to the plaintiff in the absence of Association, thus in my opinion Association is not a necessary party in the present case. Accordingly in my opinion this suit is not bad for non joinder of the necessary party. Thus, I decide this issue in favour of plaintiff and against the defendant.
12. ISSUE No.3 Onus to prove the said issue was upon plaintiff.
(i) During the course of arguments, ld. Counsel for defendant did not press for the said issue. Moreover, in view of my finding on issue No.1, it becomes clear that the plaintiff has sufficient cause of action to institute the suit against the defendant. Accordingly, I decide this issue in favour of plaintiff Page 23 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI and against the defendant.
13. Relief In the light of my findings on the issues above, a money decree on account of damages to the sum of Rs.1,00,000/- alongwith proportionate cost with simple interest @ 8% per annum from the date of judgment till realisation of the amount is passed in favour of the plaintiff and against the defendant. Decree-sheet be prepared accordingly. File be consigned to record room.
Announced in the open court On this day of 31st May, 2008 ( Pawan Kumar Jain) Additional District Judge, Fast Track court, Delhi Page 24 of 25 SH. ROSHAN LAL CHOPRA Vs SH. H.D. JOSHI Page 25 of 25