Interim Order 1

Order Details: Other
Pdf Text: 1 Ad-interim NM 1241-19 in SU 588-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON ADINTERIM RELIEFS
ON
NOTICE OF MOTION NO.1241 OF 2019
IN
SUIT No. 588 OF 2019
Dainik Bhaskar Corporation Limited ]... Plaintiff
Versus
Audit Bureau of Circulations ]... Defendant
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 28th March, 2019.
Mr. P. D. Gandhi i/b M/s Jayakar & Partners, advocates for plaintiff.
Mr. Zubin Dalal i/b Mulla & Mulla & Craigie Blunt & Caroe, advocate
for defendant.
ORDER
1. The plaintiff is seeking adinterim relief in the form of a
direction to the defendant to issue circulation certificate for Patna
Edition so as to ensure that the plaintiff's business continues
uninterupted. The plaintiff is also seeking such other consequential
interim reliefs.
2. The learned counsel for the plaintiff submitted that the
plaintiff is the largest newspaper group having 65 editions published in
four languages in India. According to him, in the State of Bihar there
-- 1 of 7 --
2 Ad-interim NM 1241-19 in SU 588-19
are four editions for Gaya, Patna, Bhagalpur and Muzaffarpur regions.
The suit is restricted to Patna edition only. He further submitted that
the defendant is the Audit Bureau Circulations (for short, A.B.C.),
consisting of publishers, advertisers, advertising agencies as its
members. The basic function of A.B.C. is to evolve and lay down a
standard and uniform audit procedure by which a member publisher
shall compute its qualifying sales, by following guidelines viz. a Guide
to A.B.C. Audit.
3. He further submitted that the plaintiff is the member of
A.B.C. and entitled to certificate of circulation, on audit of its books and
accounts to be conducted twice a year. There are normal circulation
audit and special audit. According to him, if special audit is to be
undertaken then for that period normal audit does not take place. The
plaintiff was granted certificate of circulations for the period July to
December, 2017 for all four editions. Thereafter, the plaintiff supplied
circulation figures for January to June, 2018. However, the defendant
appointed two auditors for special audit of four editions. It was
conducted on 15.10.2018. The auditors did not disclose their identity or
authority. The audit team comprised of Mr. Kasad, in violation of clause
no. 9.8 of the regulations. It was conducted without giving any reasons
or stating period for which the audit was conducted. The plaintiff also
answered the queries put to it during the audit.
4. The learned counsel of the plaintiff further submitted that
the defendant again conducted special audit on 26.11.2018 under the
direct supervision of the competitors of the plaintiff viz. Dainik Jagaran
and Hindusthan. Therefore, according to him, the second audit was bad
-- 2 of 7 --
3 Ad-interim NM 1241-19 in SU 588-19
in law and in violation of clause no. 9.8. The plaintiff raised protest
against conducting such audit. However, the defendant only issue
certificates for circulation for the Bhagalpur, Muzaffarpur and Gaya
editions.
5. He further submitted that the defendant deliberately
delayed issuance of certificate and therefore, the plaintiff could not
claim any benefit on the basis of certificate for previous audit which
ultimately resulted in heavy losses. According to him, on 06.12.2018
the defendant forwarded special raid report relating to Patna edition.
On 12.12.2018, defendant also admitted participation of the
competitors of the plaintiff in such a raid. The defendant again
intimated that Bhagalpur and Muzaffarpur editions shall be subjected to
special audit, in spite of the fact they were audited twice. However, the
plaintiff consented for such audit. Lastly, he submitted that on
15.02.2019, the defendant informed the plaintiff that defendant is not
accepting the figures for certificate of circulation for the period January
to June, 2018 and July to December, 2018 which resulted in institution
of this suit.
6. On the other hand, the learned counsel for the defendant
submitted that the plaintiff's membership was canceled in 2013 for
manipulation of circulation figures for Ranchi, Dhanbad and
Jamasedpur editions. The plaintiff accepted that decision. Thereafter,
the defendant found huge increase i.e. up to 62% in circulation figures
of Patna edition for the period January to June, 2018. The defendant
also received a complaint from Hindustan on 23.09.2018 to the effect
that the plaintiff carried out large scale dumping of copies of waste
-- 3 of 7 --
4 Ad-interim NM 1241-19 in SU 588-19
newspapers of Patna edition in order to obtain circulation certificate.
The plaintiff submitted higher circulation numbers for the period
January to June, 2018. The said complaint was supported by
photographs and videos. Therefore, it was referred to audit committee
for independent investigation by another empanelled chartered
accountant.
7. According to him, on 15.10.2018, Tody Tulsyan & Co.
Patna with special bureau officer Mr. Kasad visited Patna. They came
across 34 bundles of 100 copies each of Dainik Bhaskar were being
unloaded at godown. The concerned persons did not allow them to
take photographs and further manhandled the representative. He
further submitted that the audit team also found 3200 copies lying
unsold. However, in order to give a long rope to plaintiff, the defendant
directed second surprise market visit on 26.11.2018 through
empanelled chartered accountant M/s. S. N. Karani & Co., Mumbai,
who during such visit found Patna edition loaded in two vehicles
comprising of 176 bundles of 100 copies each at 5.00 a.m. near waste
newspaper godown.
8. According to him, on 18.12.2018, meeting of management
council of the defendant was conducted and the audit reports were
considered. The plaintiff did not reply the observations made in the
audit report. Therefore, the defendant did not take any decision. The
plaintiff was given an opportunity to explain the findings in the audit
report. On 24.12.2018, the plaintiff replied the same without submitting
any documents in support. Therefore, ultimately, personal hearing was
also given to the plaintiff on 16.01.2019 before the audit committee
-- 4 of 7 --
5 Ad-interim NM 1241-19 in SU 588-19
members and three nonpublishers members.
9. He further submitted that on 08.02.2019, in the meeting of
council of management of the defendant it was found that the plaintiff
in total disregard of the guidelines attempted to obtain higher
circulation figures for the period January to June, 2018 and July to
December, 2018. Therefore, the circulation figures given by the plaintiff
for the aforesaid period were not accepted for certification of Patna
edition and accordingly, it was informed to the plaintiff on 15.02.2019.
10. So far as, the contention that the defendant did not follow
the guidelines in clause 9.8 of the guide to A.B.C. audit etc. are
concerned, it is the basic allegation of the plaintiff that the
representatives of its competitor publishers were present. However,
even if their presence is considered there, the plaintiff has not shown
prima facie that the conclusions of the audit were wrong.
11. Prima facie it appears that the defendant has followed the
due process of law and the principles of natural justice by allowing the
plaintiff maximum opportunity and even personal hearing. Moreover,
benefit of doubt has been given to the plaintiff for the three editions
except the Patna edition. It is also undisputed prima facie that a show
cause notice has not yet been issued to the plaintiff and its membership
is not terminated. Therefore, the plaintiff is having an equally
efficacious remedy of review to the Committee is available to the
plaintiff against the decision of the defendant not to issue certificate of
circulation for Patna edition. Plaintiff can very well avail the same. The
-- 5 of 7 --
6 Ad-interim NM 1241-19 in SU 588-19
suit appears premature. Apart that, the relief the plaintiff is seeking at
adinterim level to issue certificate of circulation is in the form of final
relief claimed in the suit or the motion. The Hon'ble Supreme Court
time and again deprecated such practice of granting adinterim /
interim relief in the form of final relief at interim stage, as held in the
case of Assistant Collector vs. Dunlop India Ltd. reported in A.I.R.
1985 Supreme Court 230. The Hon'ble Supreme Court has also made
exception on the grounds of public interest, balance of convenience and
a host of other considerations. However, the case put forth by plaintiff
does not fall within the ambit of either of the exceptions and therefore,
at adinterim stage such relief can not be granted. Therefore, the
following order is passed :
ORDER
1. Adinterim relief is rejected.
2. Defendant is directed to file its reply to Notice of Motion on or
before 15.04.2019 by supplying its copy in advance to the
plaintiff.
3. Thereupon, the Notice of Motion will be heard finally.
4. Parties to bear their own costs.
Sd/
(Dr. M. S. Deshpande)
Judge,
Date : 28.03.2019 City Civil Court, Mumbai.
Directly dictated & typed on dias computer : 28.03.2019
Checked by HHJ on : 29.03.2019
Signed by HHJ on : 29.03.2019
-- 6 of 7 --
7 Ad-interim NM 1241-19 in SU 588-19
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 29.03.2019 at 3.27 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
28/03/2019
JUDGMENT/ORDER signed by
P.O. on
29/03/2019
JUDGMENT/ORDER uploaded
on
29/03/2019
-- 7 of 7 --