Delhi District Court
Mohd. Rafat Khan vs M/S Teckinfo Solutions Pvt Ltd on 28 September, 2016
IN THE COURT OF SH. R.L. MEENA ADDL. DISTRICT JUDGE02:
SOUTH WEST DISTRICT: DWARKA COURTS: NEW DELHI
Suit no. 516800/16
Mohd. Rafat Khan
S/o Mohd. Zaheer Khan
R/o A64, Ashoka EnclaveII,
Sector37, Faridabad, Haryana.
...... Plaintiff
Versus
1.M/s Teckinfo Solutions Pvt Ltd 1/1BA IIIrd Floor Mohammad Pur Opp. Bhikaji Cama Place New Delhi66
2. Mr. Nalin Mital S/o Kanta Prasad Managing Director M/s Teckinfo Solutions Pvt Ltd 1/1BA IIIrd Floor, Mohammad Pur New Delhi66.
3. Mr. Uday Anant Vaishampayan, S/o Anant G. Vaishampayan Director - M/s Teckinfo Solutions Pvt Ltd 1/1BA IIIrd Floor Mohammad Pur New Delhi66.
...... Defendants
Date of institution : 15.01.2013
Date of arguments : 07.09.2016
CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 1/17
Date of judgment : 28.09.2016
Suit for recovery of damages on account of
defamation and distress
28.09.2016
JUDGMENT
1. Plaintiff has instituted a suit for recovery of damages of Rs 19,72,000/ against the defendant on account of defamation and distress.
2. Brief facts of the case are that plaintiff was employed by the defendant company as a Sales Manager Software vide letter dated 01.05.2006. It is stated by the plaintiff that he was working with the defendant company from 01.05.2006 till 17.08.2011 but defendants forcibly prevented him to continue his job despite the fact that he was not formally terminated by defendant company. It is claimed by the plaintiff that he was misbehaved by the officials of the defendant company, therefore, matter was reported to the police vide complaint dated 16.08.2011. It is further stated by the plaintiff that defendant no.3 had also used derogative remarks against him vide police complaint dated 17.08.2011 to SHO, R.K. Puram. It is further stated by the plaintiff that he has been victim of criminal conspiracy, cheating, criminal breach of trust and defamation by the act of defendant, therefore, a criminal complaint u/s 200 CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 2/17 Cr.P.C has been filed against defendants before learned ASJ, Saket court. It is further stated by the plaintiff that he has also challenged the order of defendant company regarding termination of his service and demanded arrears of his salary and other dues through a civil suit bearing no. 800/2011 before learned Civil Judge, Dwarka Courts, New Delhi. It is further claimed by the plaintiff that he has been defamed by the defendant through his multiple documents including mail dated 08.04.2011, 27.07.2011, 29.07.2011, 02.08.2011 and letter dated 17.08.2011 written by defendant no. 3 to the SHO R.K Puram, New Delhi and also by the company legal notice dated 01.09.2011 and reply dated 22.09.2011, 22.12.2011 to plaintiff notice dated 01.09.2011, 24.11.2011 and reply dated 05.09.2011, confirmation by remaining customers of defendant no.1 including letter dated 22.10.2011 by customer Mr. Deepak Goel. It is further stated by plaintiff that even defendant company had again reiterated all the defamatory contents of legal notice dated 01.09.2011 and police complaint dated 17.08.2011 in his written statement dated 10.02.2012 in response of said civil suit bearing no. 800/ 2011. It is prayed to pass a decree of damages of Rs. 19,72,000/ against the defendant along with the cost of suit.
3. Defendants have contested the present suit by filing written statement inter alia taking preliminary objection that suit of plaintiff is not maintainable as defendants are entitled for the CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 3/17 defence of absolute privilege regarding contents of their written statement filed in response of plaintiff's civil suit bearing no. 800/2011 before the court of Learned Civil Judge, Dwarka Courts, New Delhi. On merit, it is denied by the defendant that they have used any defamatory language/statement or caused any distress against the plaintiff. It is also denied by the defendant that plaintiff was abused, physically assaulted by their accountant on 27/07/2011. It is further denied that contents of legal notice dated 01/09/2011, police complaint dated 17.08.2011 and written statement filed in the court of Learned Civil Judge, Dwarka Court had defamed the plaintiff's in reputation. Other material facts were also denied by the defendant and it is prayed that present suit is liable to be dismissed.
4. Plaintiff filed replication of the written statement wherein he denied the contents of written statement and reaffirmed the contents of plaint.
5. After pleading of both the parties, following issues were framed by my learned Predecessor vide order dated 31.07.2013:
(i) Whether the imputations made by the defendants jointly and severely vide documents including mail dated 8/4/2011, 27/7/2011, 29/7/2011, 2/8/2011 and letter dated 17/8/2011, legal notice dated 1/2/2011 and reply dated 22/9/2011 and 22/12/2011, notice dated 1/2/2011, 24/11/2011, reply dated 5/9/2011, WS dated 10/2/2012 and 1/11/2012 filed in the CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 4/17 proceedings in the civil suit no. 800/2011 amounts to defamation of the plaintiff? .... OPP
(ii) Whether the plaintiff is entitled to a decree for damages from the defendants in the sum of Rs. 10,51,000/ on account of defamation? .... OPP
(iii) Whether the plaintiff is entitled to a decree in the sum of Rs. 9,21,000/ as damages for mental agony and harassment, jointly and severely from the defendants? .... OPP
(iv) Whether the suit of the plaintiff is barred by limitation?
.... OPD
(v) Whether the suit of the plaintiff for defamation is liable to be dismissed in absence of legal notice prior to filing of the suit?
.... OPD
(vi) Whether the defendants are entitled for absolute privilege with respect to the contents of WS and reply and affidavit filed before Civil Judge, Dwarka in Civil Suit no.
800/2011? ... OPD
(vii) Relief.
6. It is to be note here that after framing of issues, plaintiff's case was fixed for the plaintiff's evidence on 24.09.2013.
7. On 24.09.2013, an application was moved by the defendant under Section 151 CPC before Learned Predecessor with request for treating issue nos. 4 and 6 as preliminary issue. The said application was disposed of vide order dated 30.08.2014 with CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 5/17 the observations that if defendant file the authority/citations showing the fact that written statement falls in the category of absolute privilege then the said issue no.6 would be treated as preliminary issue with issue no.4.
8. It is further to be note here that defendant's counsel filed a citation titled as "Brigadier B.C. Rana Vs. Seema Katoch 198(2013) DLT 35 Delhi High court" in the support of his argument and claimed that written statement falls in the category of absolute privilege.
9. In view of filing of the said citations by defendant, arguments heard on the preliminary issue nos.4 and 6.
10. I have heard arguments advanced by the plaintiff in person and Sh. Akhilender Singh learned counsel for defendant and perused the record carefully. It is to be note here that plaintiff has not engaged any advocate to proceed his case. He has been himself conducting the proceeding of the case.
11. During the course of arguments, counsel for defendant submitted that there was an agreement between the parties with the effect that in the event of termination of employment of plaintiff, he shall return to the defendant company all documents, source code, papers, laptop and its accessories and other material which were given to plaintiff during his employment. Since, service of the plaintiff was terminated vide communication dated 08.11.2011therefore, he was bound to CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 6/17 return the above said articles to defendant company but plaintiff did not return the said articles therefore, he was sent a legal notice dated 01.09.2011 for returning the said articles. It is further submitted that demanding the said articles by the defendant company from his employee (plaintiff), is not a defamation. It is further submitted that since plaintiff's service was terminated by the defendant company, therefore, he was not having any right to enter in the defendant company but despite the said fact he forcibly entered in the defendant company and misbehaved with the officials of the defendant company. The said action of the plaintiff was reported to the police authorities. It is vehemently argued by the counsel of defendant that reporting the said act of the plaintiff to the police authorities is also not defamation. It is further submitted that plaintiff filed a civil suit bearing no. 800/2011 before Learned Civil Judge, Dwarka courts for recovery of salary, dues and for declaration of the act of defendant as null and void regarding termination of service of plaintiff. It is further submitted that defendant in order to reply of the alleged fact of the said civil suit of the plaintiff filed written statement wherein he narrated all the facts including the facts of legal notice dated 01.09.2011 and police complaint dated 17.08.2011. It is further submitted that filing the said written statement falls in the category of defence of defamation that is absolute privilege and same cannot be treated as defamation. Counsel for defendant, in order to support his CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 7/17 arguments, has also relied upon the law laid down in case tittled as Brigadier B.C. Rana Vs. Seema Katoch 198(2013) DLT 35 Delhi High court. It is further vehemently argued by the counsel for defendant that since written statement filed by the defendant in the plaintiff's civil suit bearing no. 800/11 falls in the category of defence of the defamation i.e. absolute privilege therefore, period of limitation cannot be computed from the date of defendant's written statement. i.e 10.2.2012. It is further submitted that since present suit has been filed by the plaintiff against the defendant on the basis of defendant's document particular legal notice dated 01.09.2011 and police complaint dated 17.08.2011 which is beyond period of one year of Limitation, therefore, present suit is liable to be dismissed.
12. On the contra, plaintiff has submitted that defendant's company official had used defamatory language against him in his legal notice dated 01.09.2011 and police complaint 17.08.2011. Even the contents of the said documents were again reproduced by the defendants in their written statement filed on 10.02.2012 in response to his civil suit (Plaintiff's suit bearing no. 800/2011) before Learned Civil Judge, Dwarka Courts, therefore, period of limitation for filing the present suit would be computed from the date of filing of the said written statement of the defendant i.e. 10.02.2012 and the present suit has been filed on 15.01.2013 which shows that the present suit was filed within one year of CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 8/17 period of limitation. It is further submitted that the written statement is not absolute privilege, therefore, defendant cannot be escaped from his liability. Plaintiff in order to support his arguments has also relied upon the law laid down on the following citations:
(i) B.M. Thimmaiah Vs. Rukmani RFA no. 1303/2005 decided by Hon'ble High Court of Karnataka,
(ii) Sanjay Mishra Vs. Govt of NCT of Delhi Crl. MC no. 3350/2008. Date of decision 23.3.2012 decided by Hon'ble High Court of Delhi
(iii) Dr. Vimla Vohra Vs. Dr. Shambhu Ji. Date of decision 29.11.2011 decided by Hon'ble High Court of Delhi
(iv) Ram Jethmani Vs. Subramani Swami. Date of decision 03.01.2006 decided by Hon'ble High Court of Delhi
(v) Seagram India Pvt Ltd Vs Vipin Sohan Lal Sharma. Date of decision 05.04.2010 decided by Hon'ble High Court of Delhi.
(vi) Ramesh B Desai Vs. Vipin Vedilal Mehta Date of decision 11.07.2006 decided by Hon'ble High Court of Delhi.
13. Before dealing the arguments of counsel for both the parties, it is relevant to refer some relevant paras of the legal notice dated 01.09.2011 and the contents of police complaint 17.08.2011 for appreciation of the facts, which are as under: Contents of Legal Notice dated 01.09.2011 issued by defendant company to plaintiff
3. That as per the clause 9 of letter of appointment, you were CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 9/17 under the contractual obligation of executing an agreement protecting the intellectual property right, confidentiality and nondisclosure of the confidential information pertaining to our client.
8. That your services were terminated by our client vide communication dated 8 th August, 2011 and you were called upon to return the laptop and accessories, handed over to you at the course of employment to our client. You were also called upon to hand over to our client all information and documents pertaining to the customers who were being handled by you. You were also called upon to hand over all documents relating to WLC case which is pending disposal in the consumer court situated at Shekh Sarai.
9. That it is regretted that despite of the receipt of the termination letter you did not return the goods pertaining to our client which conduct of yours is not only unethical and unprofessional but was also in violation of the agreement/ undertaking executed by you.
10. That you Mr. Rafat Khan crossed all limits and decency and you illegally and unauthorisedly trespassed the office of our client on 17 th August, 2011 and started creating scene in the office of our client.
11. That on 17th August, 2011 you Mr. Rafat Khan entered the office of our client at about 10.00 a.m and forcibly occupied one seat in the office of our client and when you were called upon to leave the premises of our client you refused to do so and started shouting at the employee of our client.
12. That the working of our client came to standstill for about three hours and even the customers/vendors visiting the office CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 10/17 of our client were also surprised to see your behaviour in the office on that day.
13. That ultimately our client was compelled to call police to evacuate you from the office premises of our client.
14. That in the police station you undertook that you will return the laptop, details of persons to be contacted in the companies being handled by you. You also undertook that you shall return all the papers relating to customers handled by you along with file of WLC case.
15. That it is a matter of regret that despite your undertaking, you have not handed over the laptop and other articles to our client.
16. That in the meantime it has also come to our notice that you are continuously approaching the customers of our client and are lowering the good name of our client in the eyes of its customers.
17. That it also came to the notice of our client that you have joined hands with the competitors of our client and you are passing on confidential information which were in your possession to the customers of our client which includes lists/contact details of the customers of our client, the business strategy of our client.
18. That your above said conduct is strongly condemned."
14. The contents of letter dated 17.08.2011 addressed to the SHO, R.K. Puram by defendant company is also reproduced herein below: "This is to inform you that Mr. Rafat Khan has been terminated from our company Tecknfo Solutions Pvt Ltd w.e.f 17th August 2011. His CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 11/17 full and final settlement will be done once he returns the following:
i. Laptop ii. Papers related to all customers and WLC paper which he was representing in court.
iii. Outstanding from customers.
He will not come to office from today 17th August 2011."
15. Bare perusal of aforesaid legal notice and police complaint, it is apparent that entire dispute between the parties are based upon the following facts:
(i) Service of plaintiff was terminated by defendant company
(ii) In view of the said termination of service of plaintiff, there was a dispute of salary and other dues between the parties
(iii) Defendant company has claimed that plaintiff has not returned its goods/articles i.e laptop, its accessories, source code, papers and other material to defendant which were allegedly given to plaintiff during his course of employment.
16. In view of the said disputes between the parties, now one question is required to be posed as to whether action of defendant company particularly filing a written statement on 10/02/2012 before Civil Judge, Dwarka Court, New Delhi in the response of plaintiff in civil suit no. 800/11 falls in the category of defence of defamation i.e. absolute privilege.
17.Before dealing the said posed question or issue no.6 it is relevant to refer the provisions of defamation. There are three specialized defence to an action for defamation:
i) Justification by truth CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 12/17
ii) Fair and bone fide comment
iii) Privilege
18. Privilege is of two kinds(1) absolute and (2) qualified.
Absolute privilege cover cases in which complete freedom of communication is regarded as of such paramount importance that actions for defamation cannot be entertained at all. A person defame on an occasion of absolute privilege has no legal redress . Absolute Privilege includes the following cases: I) Parliamentary proceedings
ii) Judicial proceedings
iii) Communication by public officer.
iv) Military and Naval proceedings.
v) communication between Solicitor and Client.
19.Bare perusal of the said law of defamation it is apparent that judicial proceedings is a defence of defamation. Any step which is essentially a step in judicial of quasi judicial proceedings would be immune from liability for defamation as it gives rise to an occasion to absolute privilege.
20.Now one question arises as to whether written statement/ pleading is a part of Judicial proceedings or not ?
21. In order to ascertain the said fact, I rely upon the law laid down in "Brigadier B.C. Rana Vs. Seema Katoch 198(2013) DLT 35 Delhi High court" wherein Hon'ble Delhi High Court held that statement made in the affidavit being filed by the defendant in the course of judicial proceeding before the Registrar of the CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 13/17 society is absolute privilege and for the said reason cannot be made basis for any defamatory action in the light of this observations the present plaint is deserve to be rejected u/o VII Rule XI (d), CPC, 1908 being barred by law. It is to be note here that Hon'ble High Court of Delhi while dealing the said aspect of absolute privilege, has also relied upon the law laid down in the following cases: "32. The Kerala High Court in K.Daniel v. T. Hemavathy Amma, AIR 1985 Ker 233, explains the reasons for conferring Absolute Privilege to the statements made in the course of judicial proceedings as below:
"It is imperative that Judges, counsel and witnesses participating in the judicial proceedings must be able to conduct themselves without any apprehension of being called upon to answer a claim for damages for defamation. They must be able to act uninfluenced by any such fear. Freedom of speech on such occasions has to be totally safeguarded. Hence it is necessary to protect the maker of such statements on such occasions. The privilege arises on account of privilege attached to the occasion and not to the individual.... Basis of privilege is not absence of malice or the truth of the statement or the intention of the maker, but public policy. Any restriction on privilege during the occasion would create constraints in the process of administration of justice.
..........35. In an Allahabad case, Ali Mohammad v. Manna Lal, AIR 1929 All 972, the party to the suit had put in an application containing a defamatory statement which formed the basis of the suit for damages. It was held that Absolute Privilege attached to the said statement on the principle that there is an Absolute Privilege for parties, witnesses, Counsel, jury or Judges in regard to words spoken in office, this privilege extends to the statements in the affidavits made by parties or witnesses. This case followed in its own Full Bench decision in the case Chunni Lal v. Narsingh Das, AIR 1918 All 69 (FB) which expressly laid down that defamatory statements CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 14/17 made in the course of judicial proceedings were not actionable on the ground of Absolute Privilege. Similar has been held by the Rangoon and the Bombay High Court in Ma Kla Khin v. Ll Khin Maung U, AIR 1935 Rang 30 and Gangappagouda v. Bassaya, ILR 1943 Bom 167, respectively.
......... The Court in Pandey Surinder Nath Singh's case (Supra), observed that:
"This privilege extends to all Courts, superior or inferior, civil or revenue or military. It applies not only to all kinds of courts of justice, but also to other tribunals recognized by law and acting judicially. The privilege, although it extends to tribunals acting in a manner similar to Courts of justice, does not, however, apply to tribunals which merely discharge administrative functions, or to officials possessing merely administrative as opposed to genuine judicial functions, and it makes no different that in the performance of these administrative functions they exercise a judicial discretion. The privilege attaches not merely to proceedings at the trial, but also to proceedings which are essentially steps in judicial proceedings, including statements in pleadings. This privilege, therefore, will also apply to Officers of Court, who may have a duty to report in the course of a judicial proceeding."
22. Bare perusal of the law laid down in the said citation, it is apparent that defamatory statement made in the course of judicial proceedings including statements in pleading are not actionable on the ground of defence of absolute privilege. In the present case, plaintiff claims that since defendant has reproduced the alleged defamatory statement of his legal notice dated 01.09.2011 and police complaint dated 17.08.2011 in his written statement dated 10.2.2012 filed in the civil suit bearing no. 800/11 (plaintiff's previous suit), therefore, period of limitation would be computed from the date of filing of the said CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 15/17 written statement. Since, it has already held in the case Brigadier B.C. Rana (supra) that written statement/ pleading falls in the category of absolute privilege, therefore, contents of written statement cannot be said defamatory. Before parting this issue it is to be note here that citations relied upon by the plaintiff are not applicable upon the facts and circumstances of the present case.
23.With these observations, I find that written statement dated 10.02.2012, reply and affidavit, filed by the defendant in the plaintiff's civil suit bearing no. 800/11 titled as Mohd Rafat Khan Vs. Ms Techinfo solutions Pvt Limited, are absolute privilege. Accordingly, this issue no. 6 is decided in favour of defendant and against the plaintiff.
24. Now coming on the issue no. 4 which reads as follows:
i) Whether the suit of the plaintiff is barred by limitation? OPD
25. As I have already observed in issue no.6 that written statement, reply and affidavit filed by the defendant in the plaintiff's civil suit bearing no. 800/11 are an absolute privilege and same cannot be treated as defamation. It is to be note here that plaintiff has specifically stated that since defendant used defamatory language in his legal notice dated 01.09.2011 and police complaint dated 17.08.2011 and same were reproduced in his written statement dated 10.02.2012, therefore, the period of limitation would be computed from the date of filing of the written statement i.e. 10.2.2012. As I have already observed in CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 16/17 issue no.6 that written statement, reply and affidavit filed by the defendant in the said civil suit are absolute privilege and same cannot be treated as a defamation, therefore, period of limitation for filing of the present suit cannot be computed from the filings of said written statement i.e. 10.2.2012. The period of limitation could be computed from the dates of defendant legal notice and police complaint i.e 01.09.2011 and 17.08.2011 respectively but the present suit has been filed on 15.01.2013 which is approximately 16 months delay.
26.With these observations, I find that suit of plaintiff is time barred accordingly, issue no.4 is also decided against the plaintiff and in favour of defendant.
27. Since, issue no. 4 and 6 are purely question of law and same have been decided against the plaintiff therefore, present suit cannot be proceeded further. Accordingly, plaintiff's suit is dismissed. Decree sheet be prepared accordingly. File be consigned to record room.
Pronounced in the open (R.L. Meena)
Court on 28.09.2016 Addl. Distt. Judge2/SouthWest,
Dwarka Courts Complex, New Delhi
CS no. 516800/16 Mohd. Rafat Khan Vs. Teckinfo Solutions page no. 17/17