Bombay High Court
Dr Ravinder Kumar Anand S/O O.P. Anand vs Ozo Media Estate Ltd. And 7 Ors on 14 August, 2019
Author: S.J. Kathawalla
Bench: S.J. Kathawalla
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 1009 OF 2018
WITH
NOTICE OF MOTION NO. 1995 OF 2018
WITH
NOTICE OF MOTION (L) NO. 3095 OF 2018
IN
SUIT NO. 184 OF 2011
Dr. Ravinder Kumar Anand ... Plaintif
Versus
Ozo Media Estate Limited and others ... Defendants
Mr. Rohaan Cama alongwith Mr. Bhandari instructed by Pranjali Bhandari for the
Plaintif.
Mr. Pandit Kasar for the Defendants.
Mr. Chanakya Keswani instructed by M/s. Economic Laws Practice, for
M/s.GoogleInc.
CORAM : S.J. KATHAWALLA, J.
RESERVED ON : 17th JULY, 2019 PRONOUNCED ON : 14th AUGUST, 2019 P.C.:
1. The present order disposes of three Notices of Motion fled in the present uuit.
2. For the purposes of the present order the background facts of the suit are not very material. uufce it to state that there were 40 suits fled by the respective Plaintif in respect of 40 Agreements for uale entered into by the respective Plaintif with Defendant No. 1 herein in respect of certain commercial ofce spaces which formed ::: Uploaded on - 14/08/2019 ::: Downloaded on - 15/08/2019 03:12:21 ::: kpd 2 / 11 PD-NMS-1009-2018.doc the subject matter of the said Agreements. On account of disputes in respect of the building plans, the said 40 suits came to be fled for specifc performance of the respective Agreements for sale of the aforesaid commercial premises.
1st Consent Minutes
3. On 11th December 2015, a composite compromise came to be arrived at between the parties, and was recorded in Consent Minutes of Order ("1st Consent Minutes"). The 1st Consent Minutes inter alia provided for certain payments to be made by Defendant No. 1 which amounts, as set out in clause 3, were to be deposited in this Court together with interest at the rate determined by the Court. An issue had arisen regarding certain blogs / links / URLs bearing the names of certain Defendants, which according to the Defendants were false and defamatory, and were required to be removed. Accordingly it was agreed between the parties to the 1 st Consent Minutes that the said blogs / links / URLs were liable to be removed and discontinued. It was requested by the parties that certain orders be passed inter alia against M/s. Google Inc., M/s. YouTube LLC UuA and others.
4. The 1st Consent Minutes were taken on record by this Court on 17 th December 2015 and an order was passed in terms thereof. This Court, by consent, further determined the rate of interest at 8.5% per annum payable on the principal sum from the date of the respective advances till the date of deposit. The fgure payable as on 30th January 2016 was agreed between the parties and recorded in paragraph 2(ii) of ::: Uploaded on - 14/08/2019 ::: Downloaded on - 15/08/2019 03:12:21 ::: kpd 3 / 11 PD-NMS-1009-2018.doc the order. Certain further directions were given to M/s. Google Inc. and others as set out in paragraph 2(iii) of the order. Accordingly, the suits and the Notices of Motion then pending were all disposed of. uubsequently, a clarifcation of clause 2(ii) of the order dated 17th December 2015, was made vide an order dated 17th February 2016.
2nd Consent Minutes
5. For reasons that are at this point not of relevance, the parties entered into Modifed / Amended Consent Minutes of Order ("2nd Consent Minutes"). By the 2nd Consent Minutes there was an amendment to Clause 3 and it was now provided that Defendant No. 1 was to deposit within 120 days from the date of removal of the concerned blogs/URLs/links, the agreed sum together with interest as set out in the modifed / amended Clause 3. Clause 6 of the modifed / amended terms forming part of the 2nd Consent Minutes, particularized in Annexure '7' thereto, the blogs / links / URLs etc. which were liable to be taken down / removed / discontinued. An obligation was cast on the Plaintif to address communications to M/s. Google Inc. and others to ensure that the blogs / links / URLs "particularized in Annexure '7'' be removed.
6. Annexure '7' to the 2nd Consent Minutes contains a list of 293 blogs/links/URLs etc. which were to be removed. There is a note at the foot of Annexure '7' which reads thus: "Any other Blogs / URL's / YouTube Videos which are not included above - may also be deleted.". Pertinently, Clause 7 of the 2 nd Consent Minutes seeks certain directions from this Court to M/s. Google Inc. and others, and ::: Uploaded on - 14/08/2019 ::: Downloaded on - 15/08/2019 03:12:21 ::: kpd 4 / 11 PD-NMS-1009-2018.doc no obligation is cast, in this Clause, on the Plaintif. This is of some signifcance in the light of what is stated hereafter. The 2 nd Consent Minutes were taken on record by an Order dated 29th July 2016. The Court subsequently came to be seized of Notice of Motion No. 1157 of 2016, Notice of Motion No. 1455 of 2016 and Notice of Motion (L) No. 1299 of 2017 fled by Google India Private Limited, Google Inc. UuA and You Tube LLC seeking inter alia clarifcation that Clauses 6, 7 and 8 of the 1st Consent Minutes and Clauses 2, 3, 6, 7 and 8 of the 2 nd Consent Minutes would not be binding on them. By orders dated 4th January 2018, the above Notices of Motion were disposed of with the clarifcations as prayed.
7. The Plaintif had fled a similar Notice of Motion, being Notice of Motion (L) No. 844 of 2018 seeking clarifcation that the above clauses of the 1st Consent Minutes and 2nd Consent Minutes would not be binding on the third parties. This Notice of Motion too was disposed of by consent, vide an order dated 10 th April, 2018 clarifying the above position.
8. The efect of the above Notices of Motion being allowed were that the directions given to the third parties referred to above stood recalled. By agreement of the parties, including Defendant No. 1, there was therefore now no question of Clause 7 of the 2nd Consent Minutes being given efect to. It was clarifed that the remaining terms under the 1st Consent Minutes and the 2nd Consent Minutes would continue to be binding on the parties thereto.
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The present Notices of Motion
9. The Plaintif then fled Notice of Motion No. 1009 of 2018 seeking inter alia a direction that the period of 120 days for Defendant No. 1 to deposit the money along with interest as agreed in Clause 3 of the 2 nd Consent Minutes, commenced from the date of the orders dated 4th January 2018 / 10th April 2018. In this Notice of Motion, Defendant Nos. 1, 2 and 4 to 7 fled an Afdavit dated 3 rd August 2018, placing on record a copy of a report by one Dreamworth uolutions Private Limited ("1stDreamworth Report"), stating that 38 of the original 293 Blogs were still active and were required to be removed.
10. After taking necessary steps for removal, and as 289 of the 293 blogs referred to in Annexure '7' of the 2nd Consent Minutes had been removed, the Plaintif fled Notice of Motion No. 1995 of 2018 seeking that the Respondents added therein remove the remaining four blogs from their website. The present contesting Defendants fled an Additional Afdavit in Notice of Motion No. 1009 of 2018 on 12th December 2018 placing on record a further report by Dreamworth uolutions Private Limited ('2nd Dreamworth Report') claiming that there were 21 blogs active, including two of the original 293 which formed the subject matter of Notice of Motion No. 1995 of 2018. It was contended that besides the 293 blogs in Annexure '7', these other blogs were also required to be removed.
11. The Plaintif thereafter fled Notice of Motion (L) No. 3095 of 2018 in Notice ::: Uploaded on - 14/08/2019 ::: Downloaded on - 15/08/2019 03:12:21 ::: kpd 6 / 11 PD-NMS-1009-2018.doc of Motion No. 1009 of 2018 seeking a direction to the concerned Respondents therein to remove the 19 blogs set out therein from their website. By orders passed by this Court on 19th December 2018 and 22nd December 2018, it was directed that the said blogs be removed.
12. When the matter was listed before this Court (in chambers) on 11 th January 2019, the contesting Defendants handed over (without any Afdavit) a third report by Dreamworth uolutions Private Limited ('3rd Dreamworth Report') stating that there were certain further blogs that were required to be removed.
13. The Plaintif fled Additional Afdavits dated 17 th January 2019, 25th January 2019 and 7th March 2019 stating that all the blogs in the 3 rd Dreamworth Report had in fact been removed. When the matter appeared before this Court on 7 th March 2019, this Court noted that the two articles appearing on links of Indian Express had been removed.
14. When the matter appeared on Board on 12th March 2019, the contesting Defendants fled a further report of Dreamworth uolutions Private Limited ('4th Dreamworth Report') stating that there were 56 further blogs which were required to be removed. It bears mention that the 56 items mentioned in the 4 th Dreamworth Report, actually pertain to only 29 URLs which have been mentioned 56 times.
15. Based on the 4th Dreamworth Report, the Plaintif fled Additional Afdavits highlighting that out of the 29 URLs, 23 URLs (mentioned 43 times) stood removed. ::: Uploaded on - 14/08/2019 ::: Downloaded on - 15/08/2019 03:12:21 :::
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16. At the hearing today, the Plaintif has tendered a compilation with an index showing the 29 URLs (mentioned 56 times) and the status thereof. As regards the 6 remaining URLs (mentioned 13 times), 2 had been removed and of the 4 which remained as on the date of the hearing, it was submitted by Mr. Cama on behalf of the Plaintif that :
(i) the URLs at ur. Nos. 27 and 29 were full text reportings of Court judgments which could not removed;
(ii) the URL at ur. No. 31 was a post put up by Mr. Ashok Mahindru himself;
(iii) the URL at ur. No. 34 was only a link to various persons with the name 'Ashok Mahindru' and was in any event in no manner defamatory.
17. On behalf of the Plaintif Mr. Cama has contended that regardless of the steps bonafde taken by the Plaintif, to remove the blogs in the Dreamworth Reports, in fact, the Plaintif was required under Clause 6 of the 2 nd Consent Minutes only to remove the 293 blogs referred to in Annexure '7' and the same have been removed. He submits that the note at the foot of Annexure '7' was at highest an expression that the Plaintif 'may', if found appropriate, delete any other blogs of like nature and this was not an obligation to keep removing blogs / links ad nauseum, ad infnitum. Mr. Cama submitted that the Defendants are proceeding on an incorrect assumption that they can, on a rolling basis, keep raising new blogs and thereby defer the payment obligation under amended Clause 3 recorded in the 2nd Consent Minutes. ::: Uploaded on - 14/08/2019 ::: Downloaded on - 15/08/2019 03:12:21 :::
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18. He submits that in any case, without prejudice to their rights and contentions, all the URLs in the 4th Dreamworth Report have been removed except for the 4 (mentioned 13 times) referred to above, which are ex facie judgments of the Court or posts within the control of Mr. Ashok Mahindru, Defendant No. 4, himself and the Plaintif cannot be required to remove the same. He therefore submits that the 120 days' period for the deposit as per amended Clause 3 recorded in the 2 nd Consent Minutes be treated as having commenced, at very minimum, from today.
19. Per contra, Mr. Kasar on behalf of the contesting Defendants contends that frstly there is no desire by the contesting Defendants to prolong the matter as they are required to continue to pay interest till such time as the deposit is actually made. He further places reliance on Clause 7(b)(iii) of the amended / modifed terms recorded in the 2nd Consent Minutes to contend that all blogs containing material / contents concerning Defendant No. 1, Defendant No. 4, Mr. Ashok Mahindru, his companies, family members and employees which are defamatory, derogatory, false, mischievous and mala fde are required to be removed. Mr. Kasar however, in fairness, did not stretch the argument to contend that the Defendants can, on a rolling basis, keep furnishing further lists of blogs to be removed.
20. I have heard the learned Counsel for the parties. It is clear from a perusal of the 1st Consent Minutes and the 2nd Consent Minutes that the arrangement between the parties was restricted to the Plaintifs ensuring removal of the 293 blogs in Annexure ::: Uploaded on - 14/08/2019 ::: Downloaded on - 15/08/2019 03:12:21 ::: kpd 9 / 11 PD-NMS-1009-2018.doc '7'. It appears, admittedly so, that those 293 blogs / links / URLs have been removed. The note at the foot of Annexure '7' certainly cannot and does not entitle the Defendants to keep furnishing new lists of blogs and thereby defer the obligation to deposit under Clause 3 as amended and recorded in the 2nd Consent Minutes. It would have been sufcient for the Plaintifs to have simply removed the 293 blogs, and thereafter the time would have been treated as having commenced for the purpose of the concerned Defendants being required to make the deposit; the Plaintif need not necessarily have removed any other blogs, than the 293 referred to in Annexure '7'.
21. The reliance placed by the contesting Defendants on clause 7(b)(iii) of the 2 nd Consent Minutes is entirely misplaced. Clause 7(b)(iii) is a direction to YouTube, which direction, by the orders dated 4th January 2018 read with the order of 10 th April 2018, stand recalled, and the parties by consent agreed that the said Clause 7 will not be required to be enforced qua the third parties. Clause 7 does not impose an obligation on the Plaintifs and therefore the Defendants cannot seek shelter thereunder. Even otherwise clause 7(b)(iii) speaks of defamatory / derogatory articles being required to be removed. Ex facie neither the Court reported judgments nor the posts by Ashok Mahindru himself, or the Facebook page in question, constitute defamatory or derogatory or false material. Thus, even assuming clause 7(b)(iii) was to impose an obligation on the Plaintif, (which it does not), there would be no obligation on the Plaintif to remove the last 4 remaining blogs / URLs, set out in the 4 th Dreamworth Report.
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22. Having regard to the 4th Dreamworth Report, there are only 4 blogs / URLs which remained to be removed. From the arguments made by Mr. Kasar, fortunately it does not appear that there is any attempt to suggest that there are any other blogs / URLs which are in issue. As noted above two of these URLs are reports of Court judgments and the same certainly cannot constitute defamatory or derogatory material and nor can there be any obligation on the Plaintif to remove the same. As regards the blog at ur. No. 31 of the Compilation furnished by the Plaintif, it is evident that the blogs have been posted by Ashok Mahindru himself. The words and catch phrases used on the said blogs are entirely within the control of Mr. Ashok Mahindru himself, and if any are perceived by him to be undesirable, he is at liberty to remove the same. Certainly, the Plaintifs cannot be foisted with an obligation to remove blogs posted by Mr. Ashok Mahindru himself.
23. As regards ur. No.34 of the Compilation furnished by the Plaintif, the same is nothing but a list of persons named "Ashok Mahindru". The same in no manner is ofending, defamatory or derogatory, and in any event the Plaintif has no control over a list of such names from Facebook.
24. In the circumstances I am of the view that the Plaintif have duly complied with their obligations under the 2nd Consent Minutes, and particularly in Clause 6 thereof. Accordingly, Clause 3 as amended in the 2nd Consent Minutes must be given full efect. Though I would be entitled to direct that the period of 120 days from the ::: Uploaded on - 14/08/2019 ::: Downloaded on - 15/08/2019 03:12:21 ::: kpd 11 / 11 PD-NMS-1009-2018.doc removal of the 293 blogs has long since lapsed, as a matter of indulgence to the Defendants, I am hereby directing that the period of 120 days contemplated in Clause 3 of the 2nd Consent Minutes shall be deemed to have commenced form the date of uploading of this order and Defendant No. 1 shall deposit the sum stated therein, inclusive of interest at 8.5% per annum, payable from the dates of the respective advances as particularized in Annexure '1' to the 1 st Consent Minutes till the date of deposit. Thereafter the remaining clauses of the 1 st Consent Minutes and 2nd Consent Minutes will take efect as already agreed.
25. This order shall be treated as an order in all the suits. With the above directions, the Notices of Motion fled by the Plaintif in the captioned suit stand disposed of.
( S.J. KATHAWALLA, J. ) ::: Uploaded on - 14/08/2019 ::: Downloaded on - 15/08/2019 03:12:21 :::