Final Order 1

Order Details: Notice of Motion
Pdf Text: N.M.471/19 in Suit 1327/18 1
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.471 OF 2019
IN
SUIT NO. 1327 OF 2018
(CNR.NO.MHCC010011752019)
1. Mr. Anil G. Bhatia & Ors. .... Plaintiffs
Versus
Kashish A. Bhatia ….Defendant
Shri. Parashurami, Advocate for Plaintiffs.
Shri. Raju Yamgar, Advocate for Defendant.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Judge
C.R. No. : 32
Dated : 3rd April, 2019.
: ORDER :
. Plaintiffs taken out this Notice of Motion for order of
temporary injunction against defendant, restraining her from
circulating, writing or addressing to anyone concern in this suit and/or
in any manner concern/related to the plaintiff, any defamatory content
by any medium, pending the hearing and final disposal of the suit.
2. Defendant is the wife of plaintiff no.1 and daughterinlaw
of plaintiff nos.2 and 3. Plaintiff No.1 was residing with his parents
jointly at Flat No.331, Tower No.6, Soham Park, Hari Om Nagar,
Mulund (East), Mumbai – 81 since January 2010. From 03.05.2017
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plaintiff no.1 transferred to Delhi.
3. Defendant is his estranged wife, who has been filing false
and frivolous complaint against the plaintiffs and harassing the
plaintiffs with the connivance with mother and brother. On 19.03.2011
defendant deserted the plaintiff and residing away from the plaintiffs at
a rented premises only to accommodate her mother and brother.
Defendant had filed restitution of conjugal rights against plaintiff and
plaintiff had filed divorce petition against the defendant in the Family
Court, Thane. Defendant also filed application u/sec. 12 of Domestic
Violence Act.
4. Defendant is well aware that plaintiff is working as a
Deputy Manager and his sister Mrs. Vandita Ranjhani is working as a
Manager with the Stock Holding Corporation of India Ltd., which is in
the business of Demat Account, Stamp Duty Payment to Government of
India to Estamp certificates across various states and other products in
the financial market.
5. Defendant in collusion with her mother and brother wrote,
addressed and published a letter dtd. 29.03.2012 to his employer with
the guilty intention to harm his reputation and mention all the
matrimonial dispute between him and defendant. On the basis of said
letter his employer had conducted inquiry which is an evidence to show
that his esteem is lowered in the eyes of his employer and others and
his employer had issued a letter dtd. 21.06.2012 based on and as on
effect of the said imputation letter of the defendant. Due to the
malafide action of the defendant, his employer, coemployees are
suspecting his character and integrity and his juniors are not properly
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respecting him, rather they have been avoiding him and not even
sharing their views and matters relating to the business of the company.
As a result of which he became isolated at his work place which has
caused grave mental harassment to him.
6. The defendant in connivance with her mother and brother
in order to tarnish his image forwarded a letter dtd. 13.03.2013
addressed to Mulund Police Station and copy was circulated to
Chairman, Secretary and Treasurer of the Soham Park Society where he
was residing with his parents only with a sole intention to inform them
about the fact of matrimonial dispute pending against him and his
parents filed by the defendant. Under the guise of being a client of
Stock Holding Corporation of India, defendant is tarnishing his image,
harming his reputation repeatedly visiting the office and publicly
displaying all the order of the various court to the senior of plaintiff.
Defendant has been writing defamatory letter to his employer regarding
the on going litigation. All this evidence are from her complaint letter
dtd. 08.05.2017 as there is internal inquiry is going on against the
plaintiff. Therefore, there is a possibility that plaintiff may loose his job.
Defendant had made false allegations against him, therefore, plaintiff
prayed for interim relief by way of this Notice of Motion to the extent of
restraining defendant from circulating, writing or addressing to any one
concern in this suit or in any manner concern/related to the plaintiffs
whatsoever any defamatory content by any medium till the pending of
suit.
7. Defendant tendered the reply. Defendant made the
complaint to the stock holding on the ground of forgery and plaintiffs
are deliberately trying to portray and give it to a defamatory colour so
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as to deprive the defendant of her legitimate right. According to
defendant, her Demat account was closed illegally, her signature was
forged, therefore she had approached to the Stock Holding Company
and SEBI with her grievances being the authorised persons who are
bound to look into her complaint. Defendant is a customer of Stock
Holding Corporation and she had filed the complaint dtd. 29.03.2012 in
her capacity as an aggrieved customer. Defendant had stated true facts
of her case in her letter dtd. 29.03.2012. Plaintiffs themselves have
stated in the application dtd. 02.04.2012 before the Ld. M.M. Court,
Mulund with the statement that plaintiff no.1 is ready to withdraw the
petition for divorce. On the basis of his statement defendant decided to
withdraw her complaint and hence wrote a letter on 19.10.2012 to the
company to close the matter. But thereafter plaintiff no.1 refused to
withdraw the petition for divorce and plaintiffs by using the letter
dtd.19.10.2012 filed the defamation case bearing no. 859/SS/2016
against the defendant therefore defendant decided to reopen her case
with Stock Holding Corporation of India Ltd. Defendant further said
that she is not having any guilty feeling that her withdrawal letter
dtd.19.10.2012 should not be treated as an act or acceptance of guilt of
any kind. Defendant further states her complaint to Stock Holding
Corporation is on the ground of forgery, but plaintiffs are deliberately
trying to portray and give it defamatory colour so as to deprive the
defendant of her legitimate right and further to harass the defendant to
achieve their ulterior motive. The present suit is nothing but an after
thought to pressurise the defendant to succumb to their demand.
Defendant has specifically denied all the averments in the Notice of
Motion. Hence, defendant prays that Notice of Motion be dismissed
with costs.
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8. Considering the averment in the plaint, following points
are framed and I have recorded my findings as per the reasons given
below.
SR.
NO.
POINTS FINDINGS
1. Whether a prima facie case has
been made out by plaintiff for
grant of interim relief against
defendant as prayed in the Notice
of Motion ?
In the Negative.
2. What order ? As per final order.
9. Heard Ld. Advocate Shri. Parashurami for Plaintiffs and Ld.
Advocate Shri. Raju Yamgar for Defendant.
REASONS
AS TO POINT NO.1 :
10. The contention of the plaintiffs is that defendant wrote a
defamatory content in letter dtd. 29.03.2012 with the intention and
motive to defame plaintiff no.1 by lowering his image in the eyes of his
employer, senior and coemployee of the company by informing them
about the matrimonial dispute between him and defendant and at the
same time with his parents. On the basis of her complaint, her
employer of plaintiff no.1 issued a letter to him on 21.06.2012 and
conducted inquiry about him, therefore his esteem is lowered in the
eyes of his employer and others.
11. I have perused the letter dtd. 29.03.2012. Defendant had
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written a letter dtd. 29.03.2012 to the Stock Holding Corporation Ltd.,
as a customer of Demat account to ascertain the truth with bonafide
intention to protect her interest. Defendant had a joint Demat account
with her husband i.e. plaintiff no.1. Defendant had a Demat Account
No./Client ID18421938 and DPIDIN 301330 with the Stock Holding
Corporation, but her Demat account was closed without her consent.
Being the customer of Stock Holding Corporation she had raised
grievance by tendering complaint application dtd. 29.03.2012 to the
company. It is the allegations of the defendant against plaintiff no.1
that he had managed to close down the Demat account without her
signature. Defendant being the customer had every right to raise
grievance before the Stock Holding Corporation. Plaintiff no.1 is
working as a Deputy Manager and his sister Mrs. Vandita Ranjhani is
working as a Manager with the Stock Holding Corporation of India Ltd.
In the letter dtd. 29.03.2012 defendant made a grievance about the
closure of Demat account without her consent, therefore she had
enlightened certain facts about the pending cases filed by plaintiff no.1
and defendant against each other. It is undisputed fact on record that
whatever reference made by defendant in the letter dtd. 29.03.2012 is
of pending cases except the reference of complaint u/sec. 498 A of
I.P.C.
12. I have also perused the letter dtd. 21.06.2012 issued by
employer of plaintiff no.1. In the said letter Stock Holding Corporation
had asked the details of Demat account held jointly by plaintiff no.1
and defendant and closing procedure followed therein and also asked
for the status of the court cases pending in between the parties.
Therefore, making an inquiry by the employer with plaintiff no.1 by
issuing a letter dtd. 21.06.2012 cannot be lowered the esteem of
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plaintiff no.1 in the eyes of his employer and others.
13. Plaintiff nos. 1 to 3 preferred an application on 02.04.2012
for mediation in the domestic violence case no.250/N/2011 in 27th
M.M. Court, Mulund. In the said application, plaintiff no.1 made the
statement that he wants to withdraw Divorce Petition and defendant
should withdraw her complaint dtd. 29.03.2012 and file consent terms
and finally lead a happy married life. As things started to work out and
defendant was ready to join the company of plaintiffs, hence she had
decided to withdraw her complaint dtd. 29.03.2012 and wrote a letter
to the Stock Holding Corporation on 19.10.2012 to allow her to
withdraw the complaint dtd. 29.03.2012 and letter dtd. 11.06.2012 and
to close the matter. But plaintiff did not mention the application dtd.
02.04.2012 tendered by them before the 27th M.M. Court, Mulund. But
as soon as defendant tendered the application dtd. 19.10.2012 to the
Stock Holding Corporation but plaintiff no.1 refused to withdraw his
divorce petition and use the said letter dtd. 19.10.2012 and filed a
criminal defamation case bearing no.859/SS/2016 against the
defendant. Therefore defendant decided to reopen her case and filed a
complaint dtd. 08.05.2017 and letter dtd. 28.07.2018 with the Stock
Holding Corporation of India Ltd. But defendant did not receive the
satisfactory answer from the Stock Holding Corporation, hence she had
written a letter on 17.12.2018 to SEBI to make inquiry and provide fair
investigation on her complaint.
14. Plaintiff had filed criminal case no.859/SS/2016 u/sec. 499
and 500 of I.P.C. on the basis of letter dtd. 29.03.2012 against the
defendant. Plaintiff also filed suit bearing no.1175/2017 against
defendant. Plaintiff had filed Divorce Petition No.207/2017 against
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defendant in the Family Court, Thane. Defendant had filed petition for
restitution of conjugal rights bearing no.167/2011 against plaintiff no.1
and case under Domestic Violence Act bearing no.250/N/2011 against
plaintiffs.
15. Ld. Adv. Shri. Parshurami for plaintiff placed reliance on –
Gaurav Gupta Vs. Nidhi Bansal and Others of the Hon'ble Delhi
High Court. The facts in the citations are defendant being the wife of
plaintiff who was working with the office of Nestle India Ltd., used to
visit his office and also writing defamatory letter against him to his
employer with intention that his services should be terminated.
Defendant also used to make calls to the office of plaintiff and trying
the malign his reputation and as the call of the defendant was not
attended by the office of plaintiff, therefore defendant came in the
office of plaintiff and created scene in the office and also started
screaming and shouted at the reception, started abusing plaintiff in
filthy language and also threaten to leave their daughter alone in the
office. Due to the behaviour of the defendant she had created
disturbance, therefore injunction was granted against the defendant
from restraining her to create nuisance in the office where the plaintiff
is working and to defame him amongst his colleagues and superiors.
16. Ld. Adv. Shri. Parshurami for plaintiff submitted that
defendant had deliberately circulated copy of the letter dtd. 29.03.2012
and 08.05.2017 to the Stock Holding Corporation Limited with
intention to malign the image of the plaintiff no.1 in the eyes of his
employer. In the Notice of Motion it is not mentioned by the plaintiff
when and which date and at what time, defendant, her mother and
brother had visited or contacted his place of employment and published
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or supplied the information of matrimonial dispute among society
members, friend circle or relatives and associates. Therefore, these
persons suspect the character and integrity of plaintiff no.1. But the
facts mentioned in the above citation are not identical with the facts in
the case at hand. It is not the allegations of the plaintiff against the
defendant that defendant by visiting to the office of stock holding
created nuisance and disturb the working of the office. It is pertinent to
note that whatever the cases mentioned by defendant in the complaint
application to the Stock Holding Corporation are filed and pending
between the plaintiff and defendant, therefore reference of this cases is
nothing but true state of facts and not the defamatory statement.
17. Ld. Adv. Shri. Parshurami for plaintiff also placed reliance
on
1. Ram Prasad Vs. The State of M.P. and Another (AIR SC 1819).
2. Kedar Lal Seal and Another Vs. Hari Lal Seal, AIR 1951 SC.
3. V. Nanthagopal Vs. Union of India, AIR Madras High Court,
2010.
4. Maharashtra State Financial Vs. Amar Sea Foods and
Manerkar, 1991 71 CompCas 663 Bom.
5. Shri. K.L. Rama Mohan Vs. Sri. D.S. Kumar, Karnataka High
Court 2016.
The aforesaid pronouncement has no concern with the case
at hand.
18. Defendant is residing separately from the plaintiff since
19.03.2011 along with her minor daughter. As per the orders dtd.
12.03.2013 passed in the case no.250/N/2011, defendant shifted to her
matrimonial house i.e. Flat No.331, Tower No.6, Soham Park, Hariom
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Nagar, Mulund (E), therefore the mother of defendant who is residing
with her to look after her minor daughter had given application dtd.
13.03.2013 to Navghar Police Station and copy of the said application
was supplied to Chairman, Secretary and Treasurer of the Soham Park
Society where the plaintiff no.1 is residing with his parents. It is
submitted by Ld. Adv. Shri. Parashurami for plaintiffs that the
application dtd. 13.03.2013 was published and circulated by mother of
defendant to the office bearer of the society only with guilty intention.
19. Ld. Adv. Shri. Raju Yamgar for the defendant submitted
that the allegations of plaintiff that the letter dtd. 29.03.2012 severally
affect his reputation and career prospect therefore, cause of action arose
for plaintiffs to file the suit on 29.03.2012. The period of limitations
has to be counted as a one year from the date of the letter dtd.
29.03.2012 and similar letter written on 08.05.2017 and suit is filed on
21.04.2018, therefore suit is clearly barred by the law of limitations. On
the other hand, Ld. Adv. Shri. Parshurami for plaintiff submitted that
firstly cause of action arose from 29.03.2012 and thereafter it is
continued as there is recurring cause of action till filing of suit. Hence,
suit is not barred by limitations.
20. Ld. Adv. Shri. Yamgar for defendant further submitted that
defendant had no intention to malign the image of plaintiff no.1 in the
eyes of his superior but defendant had mentioned the pending cases to
enlightened the true facts about the disputes between defendant and
plaintiff no.1. Whatever written in the letter dtd. 29.03.2012 and
08.05.2017 are not of defamatory contents but the details of the cases
and order of Metropolitan Magistrate Court and therefore, the contents
were not false accusations against the plaintiff. Transfer of plaintiff
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no.1 from Mumbai to Delhi since 03.05.2017 is on administrative
ground and not on the complaint of the defendant.
21. After due consideration to the submission of both the
Learned Advocates, court has power to grant injunction in case of
defamatory material published by any party against the party seeking
injunction. In the instant case, the information which was mentioned in
the letter dtd. 29.03.2012, 13.03.2013 and 08.05.2017 was prima facie
correct as it was relating to the pending cases between the parties and
order of the Ld. M.M. Court passed in Domestic Violence Case.
22. After perusal of the contents in the letters mentioned
above, I found that these letters are not of false and frivolous against
the plaintiff and his parents with connivance of the mother and brother
of the defendant but it appears from the record that all the plaintiffs
had shown their willingness to go for mediation in the Domestic
Violence Case and plaintiff no.1 made a statement in his application
dtd. 02.04.2012 that he is ready to withdraw the divorce petition
therefore, defendant had sent an application dtd. 19.10.2012 to
withdraw her complaint in the letter dtd. 29.03.2012 and 11.06.2012,
but plaintiff no.1 refused to withdraw the divorce petition and on the
basis of letter dtd. 29.03.2012 filed a criminal defamation case against
the defendant. The grant of equitable relief is discretionary. The
person who seeks equity must do equity. I have scrutinized the material
placed on record. Plaintiff no.1 and his sister are working as a Dy.
Manager and Manager in the Stock Holding Corporation. Therefore,
defendant had suspect that plaintiff no.1 made a forgery while closing
the Demat account. Being the customer of Stock Holding Corporation
defendant asked for the demand to make an inquiry by way of letter
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dtd. 29.03.2012 and in the said letter defendant had mentioned the
intention of plaintiff no.1 to close the Demat account considering their
family disputes and pending cases. Every customer has a right to make
an inquiry and to know in what condition and in what manner his right
to operate the said Demat account has been terminated without her
consent as defendant had put certain hard money in Demat account.
Considering the facts and circumstances in the matter, I found that
plaintiffs are not approaching before the court with clean hand. But the
conduct of the plaintiff no.1 is of blameworthy which is
discountenanced in equity. Plaintiff has already filed criminal
defamation case against the defendant.
23. In view of above discussion, no prima facie case has been
made out by plaintiffs against the defendant for grant of relief as prayed
in Notice of Motion. Hence, I answered Point No.1 in the negative and
pass the following order.
: ORDER :
1. Notice of Motion No.471/2019 is dismissed.
2. Plaintiffs to pay costs to the defendant of this Notice of Motion.
Date : 03.04.2019 (Pushpa N. Rao)
Ad hoc Judge
City Civil Court
Greater Mumbai
Dictation Direct typed on computer : 03.04.2019.
Signed by HHJ on : 03.04.2019.
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT / ORDER.”
UPLOAD DATE AND TIME : 03.04.2019 at 5.40 pm
NAME OF THE STENOGRAPHER : P.P.Parab
Name of the Judge HHJ Smt.Pushpa N Rao
C.R.No.32
Date of pronouncement of Judgment/
Order
03.04.2019
Judgment/Order signed by P.O. on 03.04.2019
Judgment/Order uploaded on 03.04.2019
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