Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1276/20 in Suit 1177/20
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.1276/2020
IN
S.C. SUIT NO. 1177/2020
Federal Bank Limited ..Plaintiff
V/s.
Ajay Kanhaiyalal Gupta alias
Ajai Kanhaiyalal Gupta ..Defendant
Ld Adv. Ms Nidhi Singh i/b. Indialaw for plaintiff.
None for the defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 12.11.2020.
ORDER
1. Perused Notice of Motion (N/M) taken out by plaintiff
against defendant supported by an affidavit of Ms. Shalini Nimish
Somaiya, Asst. Vice President and Branch Head as authorized signatory
of the plaintiff bank. I have also perused the additional affidavit filed on
behalf of the plaintiff regarding the conduct of the defendant in the
matter. Heard Ld. Adv. Ms. Nidhi Singh for the plaintiff. Defendant is
not present before the court, inspite of service as per affidavit of service
filed on record dated 4.11.2020 along with documents vide Exhs.A to E
(colly).
2. The plaintiff has approached this court by filing present Suit
against the defendant for seeking relief of declaration that the emails/
communications posted by the defendant on various dates mentioned in
the prayer clause(a) of the plaint and circulated to various authorities/
third parties and public at large are defamatory and libellous, and
further seeking directions against the defendant to tender an
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unconditional apology in respect of the defamatory communications and
other consequential reliefs of perpetual injunction etc. The plaintiff has
also prayed for temporary injunction against the defendant in respect of
defamatory emails/ communications and further conduct affecting its
rights and causing prejudice to the plaintiff.
3. Ld. Counsel for the plaintiff further referred to the pleadings
in the plaint and documents filed on record , more particularly paras 34
(a) to (d) and details of communications which are objected by the
plaintiff. Ld Counsel for the plaintiff specifically relied upon the grounds
stated in paras 34 to 37 and 44 of the plaint and relied on the affidavit
filed on behalf of the plaintiff. It is contended that, the grievances of the
defendant regarding contractual obligations are not supported by
affidavit and circumstances as well as documents filed on record and
that there is no privity of contract between the plaintiff Bank and the
defendant.
4. The plaintiff is a reputed bank and by his conduct the
defendant is causing damage to the image of the plaintiff bank in the
eyes of public and also harassing senior officials of the bank by his
conduct and activities. The defendant is neither account holder of the
plaintiff bank nor has any business relations with the plaintiff bank. He
is a third party so far as plaintiff bank is concerned. Therefore the
conduct of the defendant is causing nuisance and emails and
communications sent by the defendant to the third parties make it public
and therefore, defamatory as per ‘law of tort’. Regarding reputation of
the plaintiff bank, Ld. Counsel for the plaintiff has relied upon the
pleadings in para 6 of the plaint.
5. So far as facts of the case are concerned, Ld Counsel for the
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plaintiff submitted that in the year 2011, M/s. Reliance Naval and
Engineering Ltd had applied to the plaintiff bank through its corporate
banking branch, Mumbai for sanction of Term Loan of Rs.300 Crores for
implementation of its second phase of shipyard project at Pipavav,
Gujarat. As per rules and regulations of the plaintiff bank regarding
sanction of the loan, M/s. Reliance Naval and Engineering Ltd was
sanctioned provisional loan of Rs.200 Crores (term loan of Rs.100 Crores
and Inland/Import LC of Rs.100 Crores), subject to terms and
conditions. As the said loan amount was lesser than the amount of
Rs.300 Crores, the said company did not accept the proposed sanctioned
loan and as a result, purported loan was never disbursed to the party.
The copy of the said provisional sanction letter along with terms and
conditions date 6.9.2011 is annexed with with the plaint vide Exh.B.
The above fact was confirmed by the plaintiff bank vide letter dated
4.7.2012, copy of which is filed with the plaint vide Exh.C.
6. On the above factual background, in the year 2014, the
defendant had raised false claim through various correspondence with
the plaintiff bank and its officials claiming that because of nonsactioning
of the loan of Rs.300 Crores to M/s. Reliance Naval and Engineering
Ltd., he did not get his alleged commission from the plaintiff bank. Ld.
Counsel for the plaintiff specifically argued that, the alleged claim of the
defendant is baseless and without any legal foundation. On 25.1.2014,
MRA Marg police station had issued a letter to the plaintiff bank in
respect of a criminal complaint filed by the defendant against the said
company M/s Reliance Naval and Engineering Ltd. and that an enquiry
u/s.202 of Cr.P.C was initiated on the basis of the complaint of the
defendant. Copy of the said letter dated 25.1.2014 is annexed with the
plaint vide Exh.D. In the course of enquiry by the police, Dy. General
Manager of the plaintiff bank had appeared before the MRA Marg police
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station on 19.12.2014 and his statement was recorded, copy of which is
filed with the plait vide Exh.G. In the year 2016, the defendant had
raised a bill no.Cons/201617 dated 8.7.2016 for an amount of
Rs.86,25,000/ and forcibly served copy of said bill on the Jr. Official of
the plaintiff bank, copy of which is filed with the plaint vide Exh.H.
Considering the conduct of the defendant and defamatory emails and
communications , the plaintiff bank had filed a complaint to the police
on 13.12.2016 against the defendant and it was registered with MRA
Marg police station and thereafter, vide letter dated 20.5.2017, the
police authority had conveyed to the plaintiff that a noncognizable
complaint/ case no.408/2017 has been registered against defendant u/s.
506, 504 of IPC. Copy of the said complaint is filed with the plaint vide
Exh.L.
7. Ld. Counsel for the plaintiff has referred to the para 22 of
the plaint and argued that, on 19.5.2017, Reserve Bank of India
Ombudsman had rejected the complaint filed by the defendant by
making some important observations, which are quoted in para 22 of the
plaint. Inspite of above, the defendant is harassing the plaintiff bank and
its officials. Therefore, the plaintiff bank has filed a private complaint
against the defendant bearing Cri. Application no. SW/186/2017 dated
28.12.2017 and it is pending before Ld. M.M., Court No.8, Esplanade,
Mumbai, which is subsequently transferred to Ld. M.M, 30th Court,
Ballard Pier, Mumbai and renumbered as Cr. Case No.234/2019. Ld.
Counsel for the plaintiff has referred to paras 26 and 27 of the plaint
and submitted that, in the meanwhile, the defendant by his act and
conduct continued to harass the plaintiff bank and also filed Cr.
Complaint bearing no.4783/SW/2013 against the said company i.e. M/s.
Reliance Naval and Engineering Ltd., which was not entertained by the
Ld. M.M. Court at Ballard Pier, Mumbai. But, the said order was
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challenged by the defendant before the Sessions Court, Mumbai, which
in turn, had reversed the order passed by Ld. M.M., Ballard Pier,
Mumbai. Then the said company had filed a W.P. against the order of
Sessions Court, Mumbai bearing W.P. No.2093/2016, and Hon’ble
Bombay High Court vide its order dated 18.3.2019, had held that there
was no document regarding actual disbursement of the alleged loan
amount on the basis of which the defendant was claiming his
commission and therefore, no case of cheating or fraud was made out
against the said company/ Directors.
8. In the meanwhile, Ld. ACMM Court on 8.1.2020, had
allowed the criminal complaint u/s. 156(3) of Cr.P.C and summons case
no. 234/SW/2019 came to be registered and investigation was ordered
to be made by MRA Marg police station. In view of the orders of the
court, offences u/s. 420,384, 500, 506 of IPC, have been registered and a
copy of which is filed with the plaint vide Exh.P. Ld. Counsel for the
plaintiff has specifically referred to para 29 of the plaint and argued that,
on 2.12.2019, the defendant had visited Fort Branch of the plaintiff bank
and forced Asst Vice President of the plaintiff bank Ms Shalini Somaiya
to acknowledge the letter addressed by him to the BKC Branch of the
plaintiff bank. When she refused to acknowledge the said letter, then he
started abusing and threatening her and in view of above said incident,
she was compelled to file a complaint to the MRA Marg police station
against the defendant bearing no.19/2020 u/s. 500, 506 of IPC., copy of
which is filed with the plaint vide Exh.Q.
9. Ld. Counsel for the plaintiff also submitted that, inspite of
service to the defendant as per affidavit of service filed on record, he has
deliberately avoided to appear before the court and has continued his
activities and has been sending intimidating emails,which are
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defamatory. Even during the lockdown period, in the month of August
2020, when the matter had come up before the City Civil Court on
7.8.2020, the defendant had failed to turn up inspite of service and
though showcause notice was issued to the defendant and matter was
adjourned to 11.9.2020. Again same notice was issued to the defendant
by the plaintiff through Counsel vide email dated 18.8.2020, copy of
which is annexed with the affidavit of service Exh.C. Again the defendant
was informed through Counsel on 24.10.2020 regarding circulation of
the matter before the court on 27.10.2020. The defendant has replied to
the email of the plaintiff bank claiming no service at all, which is not
correct and supported by record. Though it is clear that the defendant is
avoiding to appear before the court and has been indulging in
objectionable conduct and sending emails to the plaintiff bank, which
are causing serious prejudice to the plaintiff bank.
10. Ld Counsel for the plaintiff also placed reliance on the
documents filed with the additional affidavit regarding objectionable
conduct of the defendant vide Exhs.A to E and argued that, it is utmost
necessary to pass a prohibitory order against the defendant during
pendency of the suit, otherwise the very purpose of filing the present suit
would be defeated. Ld. Counsel for the plaintiff also placed reliance on
the following authorities in support of her contentions :
1. Bairangra Builders Pvt. Ltd and Anr. V/s. Bansarasi
Heritage Condominium and Ors (2018 SCC OnLine
Bom 11090)
2. DBOI Global Services Pvt. Ltd. and Anr. V/s. Mary
Varghese Abraham (2017 SCC Online Bom 7208)
11. I have gone through the above authorities and find that, in
the authority at Sr.No.1, in paras 6,13 to 19, Hon’ble Bombay High
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Court has made some important observations, which clearly support the
contentions of the plaintiff.
In the second authority also, in paras 9 and 23 to 26,
Hon’ble Bombay High Court has observed that, when emails, posts,
Resumes, twitter, comments etc are per se defamatory and intended to
affect the reputation of plaintiff or are vulgar in nature and abusive and
highly objectionable then if same are allowed to be continued to be sent it
would undoubtedly damage the reputation of the plaintiff and cause harm
to its reputation(emphasis added). Therefore, Hon’ble High Court had in
similar cases allowed the Motion restraining the defendant from making
or publishing any defamatory communication during the pendency of the
suit.
12. Considering the submissions made by Ld Counsel for the
plaintiff and in view of the ratio of the authorities cited and relied upon
of the Hon’ble Bombay High Court, after going through the contents of
alleged emails and defamatory communications, I am satisfied that the
plaintiff has made out a prima facie case and balance of conveyance is in
its favour for restraining the defendant, as prayed in the Motion. If the
Motion is not allowed, it will cause irreparable loss to the plaintiff which
cannot be compensated in terms of money and it will cause damage to
its image in the eyes of public. On the other hand, no prejudice will be
caused to the defendant, if this court forms an opinion at this stage that
the objectionable emails/ communications sent by the defendant appear
to be defamatory to the plaintiff bank and grants Adinterim temporary
injunction.
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Under the above circumstances, the N/M filed by the
plaintiff bank deserves to be allowed as per following order :
ORDER
1. Notice of Motion No. 1276/2020 is hereby allowed and
made absolute.
2. The defendant is hereby temporarily restrained from
sending defamatory emails/communications and
circulating the same to other authorities/ third parties as
per prayer clauses (a) and (b) of the Notice of motion,
during the pendency of the suit.
3. Notice of Motion No.1276/2020 stands disposed of
accordingly.
4. The Ld. Counsel for the plaintiff is directed to
communicate this order to the defendant for his
information and necessary compliance on his part.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 12.11.2020 Gr. Bombay (C.R. 03)
Dictated on : 12.11.2020
Transcribed on : 12.11.2020
Draft given to HHJ on 12.11.2020
Signed by HHJ on : 23.11.2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON :12.11.2020
TIME: 2.00 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 12.11.2020
Judgment/ order signed by P.O on 23.11.2020
Judgment/ order uploaded on 24.11.2020
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