Delhi District Court
Sh. Mahender Kumar Aggarwal vs M/S. Ansal Buildwell Ltd on 13 September, 2018
IN THE COURT OF SH. M.P. SINGH, ADDITIONAL DISTRICT
JUDGE03 (CENTRAL), TIS HAZARI COURTS, DELHI
CS No. 361/16
New CS No. 614773/16
In the matter of:
Sh. Mahender Kumar Aggarwal
S/o Sh. B. R. Gupta
R/o F16A, 2nd Floor,
Vats Complex, U158,
Shakar Pur, Delhi92. ....... Plaintiff
Versus
M/s. Ansal Buildwell Ltd.
(Through its Managing Director)
118, UFF, Parkash Deep Building,
7, Tolstoy Marg, New Delhi110 001 ......Defendant
SUIT FOR RECOVERY OF DAMAGES ON ACCOUNT OF
MALICIOUS PROSECUTION AND DEFAMATION
Suit filed on - 27.09.2008
Arguments heard on - 16.08.2018
Date of decision - 13.09.2018
JUDGMENT
1. Facts, as set out in the plaint, are as follows.
I) Defendant company, which is engaged in real estate business, in November 2004, floated a prelaunch booking scheme for residential plots in Jaipur. It started accepting cheques from prospective buyers. Plaintiff, a chartered accountant, was one such prospective buyer. The promise made was that defendant had acquired requisite land in Jaipur and had got completed all the necessary formalities, legal and otherwise, to bring an CS No. 361/16 New CS No. 614773/16 Page No. 1 of 19 approved township and would allot plots at the rate of Rs. 3,250/ per sq. yards.
II) Plaintiff on defendant's allurement and in view of its name and reputation applied for allotment of a residential plot measuring 300 sq. yards in future project/township that was to come up in Jaipur. He paid Rs. 1.50 lacs to defendant company vide a cheque dt. 01.01.2005 for this purpose.
III) To his shock, plaintiff received a letter bearing No. ABL/Jap/inf 1 dt. 21.06.2006 from defendant company thereby informing him that the allotment price was Rs. 5,000/ per sq. yards with a discount of Rs. 250/ per sq. yards. The net rate, therefore, in terms of this letter was Rs. 4,750/ per sq. yards. Defendant company thus asked the plaintiff to deposit a further amount of Rs. 2,60,250/ in order to make the booking amount as 25% of the basic cost of the plot that was to be allotted to him.
IV) Plaintiff raised a protest with the defendant company, but its officials were adamant in their illegal demands. Plaintiff obtained some information regarding defendant's scheme from various other sources and under Right to Information Act. From the information so collected, plaintiff came to know that defendant was playing a fraud and was cheating the public at large. Plaintiff formed an association of victims of the alleged fraud/ cheating being committed by the defendant. He lodged complaints with Deputy Commissioner of Police, Crime Branch, Economic Offences Wing, but to no avail. He then filed a criminal complaint1 before Ld. Additional Chief Metropolitan 1 Perusal of the record shows that Ld. Metropolitan Magistrate vide order dt. 13.07.2012 passed a summoning order against the accused therein, but the said summoning order came to set aside by Ld. Sessions Court in revision vide order dt. 18.08.2015.
CS No. 361/16 New CS No. 614773/16 Page No. 2 of 19Magistrate, Patiala House Court, New Delhi. As a result, the defendant developed personal grudges against plaintiff and the members of the association formed by him. Plaintiff alleges that in retaliation and in order to pressurize him and the other victims, defendant together with its director Gopal Ansal and its authorised signatory Anurag Verma hatched a conspiracy and took a coercive action by lodging a false and frivolous complaint against him (plaintiff) and some other persons under sections 384, 506 and 120B, Indian Penal Code. Plaintiff alleges that this was done so that he and members of the association do not raise their voice against the cheating and the fraud committed by defendant.
V) It so happened that on the complaint of the defendant company, Ld. Metropolitan Magistrate vide Order dt. 08.11.2006 directed registration of an FIR against plaintiff and other members of the association. Resultantly, FIR no. 612/06 dt. 13.11.2006, PS Connaught Place came to be registered. Plaintiff alleges that this FIR was registered on the basis of false, concocted and manipulated facts put forth by the defendant.
VI) Plaintiff then preferred a Criminal Writ Petition no. 106/07 and Criminal Misc. Application no. 998/07 for quashing of the FIR. To his respite, Delhi High Court vide Order dt. 28.09.2007 quashed the FIR and, inter alia, observed: "... The victims of the builder formed an association to fight against the builder. The builder had Crores of rupees at its disposal collected from the victims and on the basis of this money, he cold fight legal battle against the victim, if the victims gives a threat to the builder that if their money is not returned with the compensation for wrongful retention, they would CS No. 361/16 New CS No. 614773/16 Page No. 3 of 19 approach the machinery of law and lodged an FIR or complaint, can it be called an extortion? U/s 383 IPC under no stretch of imagination of magistrate could get a case registered against a person for such a threat. Every person has a legal right to approach court of law or police for registration of a case........"
Hon'ble Delhi High Court further observed, "I consider that no FIR could have been ordered to be registered by the Ld. Metropolitan Magistrate on the basis of such threats either under section 384 or 506 of the IPC. It is a clear misuse of the judicial process by the complainant who wanted to preempt the move of the victims to initiate legal proceedings against the complainant."
VII) Plaintiff avers that aforesaid observations of Delhi High Court clearly reflect on defendant's conduct, who pursuant to a criminal conspiracy gave out false information to public servants/police knowing them to be false and intending thereby to cause lodging of false complaint culminating in registration of FIR. The aforesaid observations, it is stated, also reflect that prosecution against him was initiated sans any reasonable or probable cause. Plaintiff submits that he and members of his association suffered annoyance and injury to reputation and money due to furnishing of such false information. He urges that his profession requires utmost good faith and reputation. Registration of FIR allegedly had the effect of downward spiral in his professional practice. His regular clients started to have doubts and suspicions on him and few of them began avoiding him and were reluctant to provide him further business. The FIR also caused a big dent on his future prospects and hindered his progress in life. The FIR also shook him, his dignity and reputation in his friends' circle (society) and in the business CS No. 361/16 New CS No. 614773/16 Page No. 4 of 19 community. His image in the society took a beating. As per the plaintiff, defendant violated his right to reputation in order to harass, humiliate and defame him. He alleges that defendant's motive behind registration of FIR was to harass, humiliate, defame and drag him in criminal proceedings by abuse/misuse of legal process and the judicial machinery. According to him, he spent several working hours to contest and defend the FIR. He also spent huge amount of money to protect himself from adverse consequences of the FIR and consulted Senior Advocate Sanjay Jain, Advocate Mahender Singh, Advocate Jayant Tripathi and several other legal minds. He also spent several sleepless nights and had to face strange eyes of people around him.
VIII) On these averments, plaintiff seeks damages to the tune of Rs.
19,99,999/ from the defendant.
2. Defendant in its, written statement filed on 27.03.2009, states as follows:
I) In November 2004 defendant did not float any prelaunch booking scheme for residential plots in Jaipur and did not start accepting cheques from prospective buyers. It was only in anticipation that brokers/real estate agents collected applications from proposed buyers for a scheme to be launched in the future.
II) Plaintiff had sought registration by submitting an Advance Registration Form on 01.02.2005, which contrary to its nomenclature, only enabled him to be given priority preference in defendant's project with a rebate of Rs. 250 per sq. yards on the declared list price. Mere submission of the said form did not CS No. 361/16 New CS No. 614773/16 Page No. 5 of 19 bring into existence any legally enforceable right between the parties. The said form duly filled in by the plaintiff itself provided that plot allotments were contingent on development/coming into existence of the future project. The form did not provide for the price at which the plot was to be sold. The form, on the contrary, stated that registration was in consideration of and effective on receipt/registration of minimum booking amount and that the amount received would be treated as advance and adjusted towards the principal demands to be raised at the time of confirmation of booking. The said form neither fixed the total consideration nor the mode of payment. The form lacked better and material particulars in order to constitute a legally enforceable relationship between the parties. The form itself clearly stated that the list price was to be declared by the defendant on the day of the offer and also made an entitlement for discount of Rs. 250/. The form never stipulated that the plot would be allotted at Rs. 3,250/ per sq. yards as claimed by plaintiff. The said form was merely an agreement to enter into an agreement and no concluded contract for sale of land or interest therein was arrived at. There was no consensus ad idem. Price and location of the plot was also not decided. Right to fix the plot price is the sole, absolute and exclusive domain of a seller. As such it was for the defendant to declare the list price and also to take a call on the offer to sell plot of a specified size. But, in case the price was not acceptable to the plaintiff, he was always free to refuse the offer and in such an event defendant was to return the deposit with simple interest @ 10% per annum. At no point of time, the plaintiff, upon expiry of 12 months, was under obligation to transact with CS No. 361/16 New CS No. 614773/16 Page No. 6 of 19 defendant qua the said form.
III) Process of development is an extremely time consuming exercise and the same requires numerous approvals/clearances before the plots can be allotted/sold to individual customers. Despite attempts and on account of unforeseen difficulties, no land could be got allotted at Panipat and the plaintiff despite knowing this did not seek return of the amount deposited, and rather himself through letters dt. 25.11.2005 and 25.04.2006 requested that his preference for Panipat be substituted to that for the future project at Jaipur. This decision of plaintiff was his own conscious and voluntary decision as the return at Jaipur was higher. Defendant received 'No Objection Certificate' from Jaipur Development Authority and thereafter started to inform the applicants, including the plaintiff, vide letter dt. 30.06.2006 together with the indicative price list. Plaintiff failed to agree/accept the indicative price list and by way of his letter dt.
25.07.2006 alleged that the same was arbitrary, unjust and unreasonable and the same be withdrawn forthwith. Nonetheless, plaintiff in his letter dt. 25.07.2006 admitted that the rate price at which the plot was to be allotted was not declared. Plaintiff's claim with respect to the price resulted in material variation, was found to be unfounded, baseless and sans any substance and the same was thus turned down. Even assuming that such a relationship existed between the parties under the said form, the same ceased to exist on plaintiff's voluntary act of not agreeing to the indicative price list as forwarded along with the letter dt. 30.06.2006. Defendant was therefore compelled by way of letter dt. 12.10.2006 to cancel plaintiff's registration and to refund the amount deposited, CS No. 361/16 New CS No. 614773/16 Page No. 7 of 19 together with simple interest at the rate of 10% per annum thereon, by way of cheque bearing no. 896998 for Rs. 2,01,135/. Instead of accepting the cancellation, plaintiff chose to treat the said form as valid, subsisting and binding. Plaintiff, being a speculator, desired to invest in the aforementioned township as he considered the same to be a high return investment. His decision to invest for a priority preference in the future project was more out of his interest to capitalized on defendant's name and reputation rather than any genuine desire for residential unit.
IV) Plaintiff also commenced vilification campaign against the defendant alleging that it in connivance with brokers had cheated and defrauded the public and that he (plaintiff) was therefore within his right to report the matter to DCP/Crime Branch in case the intimation letter was not modified. Plaintiff's allegations are absolutely baseless as defendant always conducted its business within the confines of law. Plaintiff's malafides are clear inasmuch as he returned the cheque by way of his legal notice dt. 17.10.2006 and continued to make false, scandalous and defamatory allegations against the defendant. Plaintiff having chosen not to honour his part of the commitment also turned the civil dispute into a criminal one by making false, baseless and unfounded allegations that defendant had cheated and defrauded him. Plaintiff formed an association called 'M/s. Ansal Buildwell Ltd. Policy's Victim Association'. He caused for publication of defamatory, libelous and untrue articles in Punjab Kesari and Nayak Bharti on 10.10.2006 and 26.09.2006 respectively thereby causing damage to defendant's business, goodwill and reputation. On account of CS No. 361/16 New CS No. 614773/16 Page No. 8 of 19 defamatory articles published at plaintiff's instance, several investors/customers/shareholders approached defendant to stress that if the allegations were true they would not want to do business with it. Plaintiff filed a false complaint before DCP/Crime Branch on 03.10.2006 through the aforesaid association and marked copies thereof to numerous persons/organizations and authorities. The said association made a complaint to DCP/Crime Branch, New Delhi on 09.10.2006 whereupon Crime Branch conducted investigation and defendant filed reply and which complaint, after through investigation, was found to be of no substance by Economic Offences Wing. Apart from addressing false representations and publishing untrue reports, plaintiff also on one particular occasion on 09.10.2006 attempted to barricade Mr. Gopal Bansal's entry to a Court and shouted slogans at him to draw public attention. On account of irreparable injury to goodwill, reputation and business suffered by defendant, it filed a suit for compensation of Rs. 21 lacs against plaintiff and that the instant suit cannot be maintained till the outcome of the suit filed by defendant.
V) Under the circumstances created by the plaintiff and his association, the defendant acting in just and reasonable manner made a complaint to the police station and when the police took no action on the same, it moved an application under section 156 (3), CrPC before Ld. Additional Chief Metropolitan Magistrate. Ld. Metropolitan Magistrate after going through the substance of the complaint, ordered registration of FIR against the association formed by the plaintiff. Imputation of criminal offence in the said complaint was not made against any CS No. 361/16 New CS No. 614773/16 Page No. 9 of 19 individual, but it was against the activities of the association collectively and hence the plaintiff has no cause of action to file the present suit. Hon'ble Delhi High Court while passing the order had not gone into the truth of the facts. The Order was passed on the premise that the averments in the complaint do not fulfill the requirements of sections 384/506, IPC. The said order was not passed after a detailed trial and after taking into consideration each and every fact and circumstances of the case. As such, the allegations raised in the complaint were not proved to be false. Plaintiff's averments as regards loss of reputation, business, esteem, future prospects etc. are incorrect. Denying other averments the defendant seeks dismissal of the suit.
3. Issues framed on 13.02.2012 are:
1. Whether no cause of action has arisen in favour of the plaintiff and the plaintiff has concealed and suppressed the material facts from the court? (OPD)
2. Whether the plaintiff is entitled for the damages, if any, to what extent? (OPP)
3. Relief.
4. Plaintiff Mahender Kumar Aggarwal (PW1) was his sole witness. On defendant's behalf, only one witness, namely, Akash Jyoti Baruah (DW1) was examined.
5. Arguments heard. Record perused.
6. Issuewise findings are as follows.
7. Issue no. 2 - The issue is whether plaintiff is entitled for the damages as claimed, onus being on plaintiff to prove it. In order to establish the Tort of Malicious Prosecution, the plaintiff has to establish the following ingredients: (a) that he was 'prosecuted' at CS No. 361/16 New CS No. 614773/16 Page No. 10 of 19 defendant's instance, (b) that his 'prosecution' terminated in his favour, (c) that the 'prosecution' was malicious, and (d) that it was without reasonable and probable cause.
8. The very first question that arises for consideration is whether mere registration of FIR, albeit on the order of Ld. Metropolitan Magistrate, without anything more, can be said to be a 'prosecution' as understood under the Tort of Malicious Prosecution. It does appear from the record that police, pursuant to registration, took no steps whatsoever for investigation. It did not issue any order in writing under section 160 CrPC asking 'any person acquainted with the facts and circumstances of the case' to appear before it. It examined no witnesses under section 161 CrPC. Police never called upon the plaintiff to come and appear before it. Neither did the police visit plaintiff's house/office for any search or seizure. For that matter, the police, pursuant to registration of FIR, never visited plaintiff's house/office for any purpose whatsoever. Neither were the members of plaintiff's association called to police station for investigation. It has not come on record that police ever visited the house/office of any member of the association. Plaintiff was never arrested, much less detained, for even a brief moment. Plaintiff never applied for any anticipatory bail in anticipation of his arrest. The complainant in the FIR never moved any application before the police or Ld. Metropolitan Magistrate alleging that even the initial investigation had not been taken. It could very well have been that police may have filed a closure report/cancellation report or a report under section 169, CrPC. The question therefore is whether under the given circumstances the solitary factum of registration of FIR, albeit on the order of Ld. Metropolitan Magistrate, would mean that 'prosecution' had been CS No. 361/16 New CS No. 614773/16 Page No. 11 of 19 launched. It is the view of this Court that under the given circumstances no 'prosecution' could be said to have been launched. In S.T. Sahib vs. N. Hasan Ghani Sahib & Ors., AIR 1957 Mad 646 it has been held that action for malicious prosecution is not favoured in law and should be properly guarded and its true principles strictly adhered to, since public policy favours the exposure of a crime and it is highly desirable that those reasonably suspected of crime be subjected to the process of criminal law for the protection of society and the citizen be accorded immunity for bonafide efforts to bring antisocial members to the society to the bar of justice. This Court has not come across any decided case where the mere factum of presentation of a complaint in the form of FIR, sans anything more, was held to be 'prosecution' under the Tort of Malicious Prosecution. Neither has any such decision been pointed out to this Court. Privy Council in Gaya Prasad Tewari vs. Bhagat Singh, (1908) 36 IA 189 observed that mere setting of the law in motion would not be sufficient.
9. It is no doubt correct that 'prosecution' in the context of Tort of Malicious Prosecution should not mean 'prosecution' as understood in the strict legal sense under the criminal law. Indeed, Privy Council in Mohamed Amin vs. Jogendra Kumar Bannerjee & Ors., AIR 1947 PC 108 had observed, "From this consideration of the nature of an action for damages for malicious prosecution emerges the answer to the problem before the Board. To found an action for damages for malicious prosecution based upon criminal proceedings the test is not whether the criminal proceedings may be correctly described as prosecution; the test is whether such proceedings have reached a stage at which damage to the plaintiff results. Their Lordships are not prepared to go as far as some of the Courts in India in saying that the CS No. 361/16 New CS No. 614773/16 Page No. 12 of 19 mere presentation of a false complaint will per se found an action for damages for malicious prosecution." But the facts of Mohamed Amin (supra) are clearly distinguishable. The facts were that a criminal complaint was filed, the Magistrate took cognizance under section 190 CrPC, examined the complainant on oath under section 200 CrPC, held an inquiry in open court under section 202 CrPC for which the plaintiff was issued notice and he appeared and participated through his counsel in the inquiry under section 202 CrPC and the complaint was then dismissed under section 203 CrPC. Therefore, in Mohamed Amin (supra) the clearly distinguishable facts are that cognizance had been taken, complainant's statement on oath was recorded in the court, the plaintiff was issued notice for the inquiry under section 202 CrPC and in which enquiry he did actually appear and participate through his counsel and it was then that the complaint was dismissed under section 203 CrPC. In the case at hand, except for registration of FIR pursuant to an order under section 156(3) CrPC, there were no further developments of any sort whatsoever towards investigation and/or 'prosecution'. It should not be forgotten that as held by Privy Council mere presentation of a false complaint will not per se found an action for malicious prosecution or for that matter mere setting of the law in motion would not suffice for a Tort of Malicious Prosecution.
10. It may be argued that the very fact that the jurisdiction of an authority clothed with judicial powers was invoked and an order under section 156(3) CrPC came to be passed leading to registration of FIR would per se suffice to hold that 'prosecution' had commenced. There are few judicial decisions holding that to prosecute means to appeal to some judicial authority. In Sk. Mehtab vs. Balaji, AIR 1946 Nag 46 : 1945 SCC OnLine MP 105 following observations occur, CS No. 361/16 New CS No. 614773/16 Page No. 13 of 19 "That the defendant prosecuted the plaintiffs has not been disputed before me though the matter was raised in the memorandum of appeal. To prosecute is to set the law in motion and the law is only set in motion by an appeal to some person clothed with judicial authority in regard to the matter in question. : Clerk and Lindsell on Torts, 9 th Edn., at p. 665. The gist of the action for malicious prosecution is that the defendant set the Magistrate in motion." However, these observations were made in a fact situation that were altogether different than that in the present lis. The facts therein were that on registration of FIR, chargesheet was filed, plaintiffs were summoned to face the charge, but at the stage of framing of charge they stood discharged. It is settled that ratio of a case must be understood in the background of the factual matrix obtaining therein {Bharat Petroleum Corpn. Ltd. vs. N. R. Vairamani, AIR 2004 SC 778). In the case at hand, there was no investigation whatsoever pursuant to registration of FIR. Plaintiff was never detained / arrested even for a moment or ever called to the police station. There was no search / seizure carried out at his house/office. There was no chargesheet filed. The stage of cognizance whereby the Magistrate applies his mind to the suspected commission of an offence for the purpose of proceedings to take subsequent steps never came. Such being the circumstances in the present case, this Court is of the view that no 'prosecution' ever commenced notwithstanding the fact that registration of FIR was done on the order under section 156 (3) CrPC of an authority clothed with judicial powers.
11. The authorities closest to the factual matrix of the present case which I could come across are a Delhi High Court decision reported as K. B. Mathur Vs. Sheel Kumar Saxena, (1992) 47 DLT 114 : 1991 CS No. 361/16 New CS No. 614773/16 Page No. 14 of 19 SCC OnLine Del 504 and a Bombay High Court decision of Nilkanth Baliram Sawarkar Vs. Vidyanand Balkrishna Ogale, 2018 SCC OnLine Bom 929. In both these decisions the FIRs had been quashed. However, notwithstanding quashing of the FIRs, the factual matrix therein were significantly different than that obtaining in the present case. In K. B. Mathur (supra) pursuant to registration of FIR under sections 380/448, IPC police arrived at the property, took the plaintiffs to police station, detained them for few hours, took their finger prints and subsequently a chargeeheet was filed before the Court of Magistrate who took cognizance of the offences. However, on the very first day, they had been released pursuant to anticipatory bail order from Court. Plaintiffs then, after the chargeheet had been filed, moved the High Court for quashing of FIR and which FIR stood quashed. In an action for malicious prosecution, court held that the plaintiffs had indeed been maliciously prosecuted. It would be clearly evident that the facts of the present case are distinguishable from K. B. Mathur (supra). In Nilkanth (supra) on a complaint FIR under sections 447, 466, 467, 468 and 471, IPC came to be registered against the appellant. Appellant approached Sessions Court for anticipatory bail. Anticipatory bail was granted subject to the condition that the appellant would appear before the police station on alternate days. For quashing of the FIR, appellant filed a Writ Petition. While the Writ Petition was sub judice, chargesheet came to be filed on conclusion of investigation. Subsequently, FIR came to be quashed and the proceedings before Chief Judicial Magistrate were dropped. In an action for malicious prosecution, Trial Court awarded damages for malicious prosecution. In appeal, the First Appellate Court held that appellant had indeed been maliciously prosecuted, but dismissed the CS No. 361/16 New CS No. 614773/16 Page No. 15 of 19 suit as being time barred. In second appeal, the decision of First Appellate Court was upheld. The point therefore is that the judicial decision holding that the appellant had been maliciously 'prosecuted' were found under a set of factual matrix that were quite different from that obtaining in the present case. In the present case, except for registration of FIR, albeit on the order of Ld. Metropolitan Magistrate, there were no further developments of any sort whatsoever towards investigation and/or 'prosecution'.
12. To sum it up, there was no 'prosecution' of the plaintiff. Mere lodging of a criminal complaint whether under section 200 CrPC or in the shape of an FIR would not per se, sans anything more, amount to commencement of 'prosecution'. I have not come across any authority and neither was any pointed out to this Court which could lay down that the mere factum of registration of FIR, sans anything more, would per se amount to commencement of 'prosecution' as understood under the Tort of Malicious Prosecution. On the contrary, there are several judicial decisions, including that of Privy Council, holding that 'mere presentation of a false complaint will not per se found an action for damages for malicious prosecution' and that 'mere setting of the law in motion would not be sufficient'. Consequently, plaintiff has failed to make out a case for tort of malicious prosecution.
13. The fact that the plaintiff was constrained to approach Hon'ble Delhi High Court for quashing of the FIR would not, by any stretch of imagination, lead to an inference that he had done so on being 'prosecuted' and not otherwise. Such a stand would overlook the fundamental fact that the writ petition was filed to forestall the 'prosecution' and not as a step towards 'prosecution'.
CS No. 361/16 New CS No. 614773/16 Page No. 16 of 1914. Plaintiff's next cause of action is founded on the tort of defamation. However, for the multiple reasons to follow he has no case to make out in this respect. Firstly, a cause of action for the tort of defamation cannot be founded on the basis of a complaint presented to a criminal court and the FIR registered pursuant to court order. This is for the reason that they qualify as absolute privileges. Any allegation made during the course of judicial proceedings and in pleadings are absolutely privileged in India and no civil action for defamation lies on the basis of such pleadings or statements made during the judicial proceedings. In Pandey Surinder Nath Singh vs. Bageshwari Prasad, AIR 1961 Patna 164 it has been held that absolute privilege is not just confined to judicial proceedings, but also to the steps that are essential to the judicial proceedings. Secondly, one's own estimation of one's own reputation cannot give any cause of action for defamation. In the case at hand, plaintiff has not examined any person to say that on account of the socalled defamatory contents of the complaint / FIR, in his eyes, estimation of the plaintiff was lowered and that he then shunned the plaintiff. Thirdly, there is no evidence of 'publication' by the defendant of the socalled defamatory material. Presentation of a case to a court and registration of FIR on court order is no 'publication'. There is no evidence to say that the plaintiff had made 'publication' of the socalled defamatory material to any individual or to any body of persons or to the public at large. For these multiple reasons, it is held that plaintiff has failed to make out a case for tort of defamation.
15. To conclude the discussion on this issue, it is held that the plaintiff is not entitled to claim any damages from the defendant. This issue is decided against the plaintiff and in defendant's favour.
CS No. 361/16 New CS No. 614773/16 Page No. 17 of 1916. Issue no. 1 - The issue is whether no cause of action arose in plaintiff's favour and whether plaintiff concealed and suppressed material facts from the court, onus being on defendant to prove it.
17. This issue has two limbs. Firstly, whether the plaintiff had no cause of action in his favour. On this aspect, in view of the findings hereinabove on issue no. 2 it is held that plaintiff had no cause of action either in respect of Tort of Malicious Prosecution or in respect of Tort of Defamation.
18. The other limb of this issue is whether plaintiff concealed and suppressed material facts from the court. As per the defendant, the plaintiff concealed several 'material' facts that were actually set out in the written statement and which has been noted hereinabove in paragraph no. 2 of this judgment. There can certainly be no denial from the settled principle of law that suppression of 'material' fact by a litigant disqualifies him from obtaining any relief. The rule has been evolved out of need of the courts to deter a litigant from abusing the process of court by deceiving it. But what is essential is that the suppressed fact must be a 'material' fact. It must be material fact in the sense that had it not been suppressed it would have had an effect on the merits of the case. Decisions reported as Mayar (H. K.) Ltd. & Ors. Vs. Owners and Parties, Vessel M. V. Fortune Express & Ors., AIR 2006 SC 1828; M/s S. J. S. Business Enterprises (P) Ltd.
vs. State of Bihar & Ors., AIR 2004 SC 2421 and Virender Nath Gautam vs. Satpal Singh & Ors., AIR 2007 SC 581 can be referred to in this context. To my mind, the facts put forth by the defendant were not actually 'material' from the point of view of plaintiff's cause of action. They were not 'material' for the plaintiff to have maintained the present action. They may have been essential from the point of CS No. 361/16 New CS No. 614773/16 Page No. 18 of 19 view of the defence of the defendant, but they were not essential, or rather 'material', from the perspective of the plaintiff to file the present suit and for setting up his cause of action. In Mayar (supra), it was contended that the plaintiff had suppressed 'material' facts by not disclosing the clause in an agreement/ Bill of Lading about court's territorial jurisdiction in the event of a dispute. Apex Court held that such a clause may not have been material from the point of view of plaintiff's cause of action, rather the same may have been essential from defendant's point of view of defence and thus absence of reference to such a clause in the agreement / Bill of Lading can be no suppression of 'material' fact because the question of jurisdiction would be required to be decided on the basis of material placed on record at the trial. It is thus held that the plaintiff in the instant case did not suppress or conceal material facts from this court.
19. This issue (issue no. 1) accordingly stands decided.
20. Relief - This suit stands dismissed. No order as to costs. Decree sheet be drawn up. File be consigned to record room.
Digitally signed by MURARIANNOUNCED IN THE OPEN MURARI PRASAD
SINGH
PRASAD Date:
SINGH
COURT ON 13.09.2018
2018.09.13
15:55:54
+0530
(M. P. SINGH)
ADJ3 (CENTRAL)
TIS HAZARI COURTS
DELHI
CS No. 361/16
New CS No. 614773/16 Page No. 19 of 19