Order 2

Order Details: Copy of Judgment
Pdf Text: S.C.Suit No. 1581/18. 1 Judgment (Exh.23).
MHCC010059622018
Presented on : 02-05-2018
Registered on : 28-06-2018
Decided on : 30-11-2022
Duration : 4 years, 6 months, 28 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
S. C. SUIT NO. 1581 OF 2018
EXHIBIT NO.23.
1. The Kurla Kamgar Coop. Hsg. Soc. Ltd., )
(Regd. No. B.368 of 1953), )
Having its Office at Kamgar Nagar, )
S.G. Barve Marg, Kurla (East), )
Mumbai400024 through its Secretary, )
2. Mr. Sudhir Dattatray Naik, Chairman, )
Age 64 years, Retired, )
3. Mr. Milind Prabhakar Chavan, Secretary, )
Age 47 years, Occ. Service, )
4. Mr. Vilas Shantaram Chitnis, Treasurer, )
Age 68 years, Pensioner, )
5. Mr. Pradip Madhusudan Gawde, )
Age 47 years, Occ. Business, )
6. Mr. Suresh Ganpat Malvankar, )
Age 67 years, Pensioner, )
7. Mr. Kishor Balkrishna Gidde, )
Age 57 years, Occ. Service, )
8. Mr. Subhashchandra Narayan Pavale, )
Age 78 years, Retired, )
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S.C.Suit No. 1581/18. 2 Judgment (Exh.23).
9. Mr. Vivek Laxman Abhang, )
Age 53 Years, Business, )
10. Mr. Prakash Premanand Bhirangi, )
Age 62 years, Pensioner, )
11. Mr. Siddharth Waman Karande, )
Age 38 years, Occ. Service, )
12. Mr. Avinash Dattatray Bhate, )
Age 58 years, Business, )
13. Mrs. Vaishali Pandurang Manjrekar, )
Age 45 years, Occ. Business, )
14. Mrs. Vishakha Vitthal Dhuri, )
Age 58 years, Occ. Service, )
15. Mr. Sunil Dattatray Vedekar, )
Age 50 years, Occ. Business, )
16. Mr. Dharmendra Manohar Nakhate, )
Age 54 years, Occ. Business, )
Nos. 2 to 4 Office Bearers and Nos. 5 to 16 )
Committee Members of The Kurla Kamgar )
Coop. Hsg. Soc. Ltd., (Regd. No. B.368 of 1953), )
Having its Office at Kamgar Nagar, )
S.G. Barve Marg, Kurla (East), )
Mumbai400024 ) ...Plaintiffs
Versus
Mr. Pankaj Vasant Hiwalkar, )
An Adult, Occ. )
R/o. Bunglow No. 65D, )
Kurla Kamgar Coop. Hsg. Soc. Ltd., )
Kamgar Nagar, Kurla (East), )
Mumbai400024 )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 30th NOVEMBER, 2022.
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S.C.Suit No. 1581/18. 3 Judgment (Exh.23).
Shri Mohan Dhamal, Advocate for the plaintiffs.
Shri Swapnil Ambure, Advocate for the defendant.
JUDGMENT
(Delivered on 30th day of November, 2022)
1. This is a suit for recovery of damages.
2. Case of the plaintiffs, in brief, is as under :
Plaintiff no.1 is the Cooperative Housing Society and
plaintiffs no.2 to 4 are office bearers of plaintiff no.1. Plaintiffs no.5 to
16 are members of plaintiff no.1 society. The defendant is resident of
plaintiff no.1 society in Bungalow No.65 D in Kurla Kamgar Co
operative Housing Society Ltd., Kurla (East), Mumbai. The police of
Nehru Nagar Police Station raided Bungalow No.69 B in plaintiff no.1
society owned by Dr. Sitaram S. Bhakare between 17.35 to 18.40 hrs.
on 14/11/2017 and they found two women using the said premises for
running illegal / immoral business of prostitution. Three victim ladies
were found there. The police had registered Crime No. 317/2017 at
Nehru Nagar Police Station under Section 370 r/w 34 of the IPC and
Sections 3, 4, 5 and 6 of the PITA Act. After some time, the defendant
gave interview to news channels outside Nehru Nagar Police Station
and made statements in Marathi as well as Hindi language. The
defendant stated about support of local residents and a few office
bearers to this illegal activity. The defendant further made statement
that he persuaded the matter and he himself was chargesheeted and he
personally suffered for it. He further stated that such illegal activities in
the society of gentlemen should be prevented. Now, the plaintiffs have
grievance that these statements were telecasted on news channel
throughout the State and around the world at large. The plaintiffs have
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S.C.Suit No. 1581/18. 4 Judgment (Exh.23).
relied upon video recording of aforesaid interview dated 14/11/2017
and photograph thereof.
3. The plaintiffs further relied upon whatsapp post by the
defendant on whatsapp group of Aaple Kamgar Nagar dated
26/06/2016 in which the defendant alleged that with blessings of
Parivartan Panel sex racket was being run in 69 B in the colony.
Residents may check. He again posted that name of the person running
this racket is More and Parivartan Panel knows the same.
4. Therefore, plaintiff no.2 submitted written complaint to Sr.
Inspector of Police, Nehru Nagar Police Station on 27/06/2016.
Similarly, written notice dated 27/06/2016 was given to Sitaram
Sakharam Bhakare informing about whatsapp post dated 26/06/2016.
He was asked to take immediate action and inform in writing to the
Managing Committee on 29/06/2016 at 8.00 p.m. by personally
remaining present with true copy of agreement made with the tenant.
As no reply was received from Sitaram Sakharam Bhakare, letter dated
27/07/2016 was served upon him by the plaintiffs on 04/08/2016 for
cancellation of his membership.
5. Charge of plaintiff no.1 society was handed over by the
earlier Body on 19/01/2016 after the election having conducted and
results declared by the Returning Officer on 16/01/2016. The plaintiffs
are trying their best to see that no any illegal and immoral acts and
activities are allowed in the residential colony of the society.
6. The society had requested owner of Bungalow No.68 C to
get his premises vacated from Mr. Deepak More and Mrs. Rekha Deepak
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S.C.Suit No. 1581/18. 5 Judgment (Exh.23).
More, the subtenants. He stated that the agents in the area were also
asked not to give any premises/bungalow on Leave and License basis to
Mr. and Mrs. More. Estate Agent Mr. Raghu Samgiskar did not agree to
the request made by the plaintiff. Ignoring oral instructions of plaintiff
no.1 society, he finalized transaction with Mr. and Mrs. More of Row
House No. 62 A of Shri Desai. When the plaintiffs approached Mr.
Desai, the said transaction was cancelled.
7. The plaintiffs had sent Show Cause Notice dated
20/11/2017 to Dr. Sitaram Sakharam Bhakare. The plaintiffs sent
notice dated 19/01/2018 through their advocate calling upon the
defendant to withdraw the said statement made by him in his interview
given to news channel and to put an unconditional apology in writing
as well as by giving interview before news channel in Marathi as well as
Hindi and also publishing in newspaper Marathi as well as Hindi
circulated throughout Mumbai within 14 days from the date of receipt
of notice by him. The plaintiffs also issued statutory notice to Dr.
Sitaram Sakharam Bhakare under Section 35 r/w Rule 28 of MCS Act,
1960 and ByeLaws No. 49(c) and (d) of the plaintiff society.
8. The defendant sent reply dated 24/01/2018 in which he
contended that his interview was a natural outcome posing himself as a
responsible member of the society and it was a spontaneous interview.
The defendant posed himself as a member of the plaintiffs and it was
his fundamental right. The plaintiff applied for certified copies of
certain documents by sending letter dated 16/02/2018 through their
advocate to Deputy Commissioner of Police, ZoneVI. However, copies
were not furnished to the plaintiffs' advocate. For this reason, the
plaintiffs filed the suit for damages of Rs.10,00,000/ against the
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S.C.Suit No. 1581/18. 6 Judgment (Exh.23).
defendant with interest at the rate of 18% p.a. from the date of the suit
till realization. The plaintiffs also claimed costs of the suit.
9. The defendant filed written statement (Exh.7) in which
he came up with the following case :
The plaintiffs have suppressed material facts. This Court
has no jurisdiction to entertain and try the suit. No cause of action is
disclosed by the plaintiffs against the defendant. The plaintiffs are silent
on the actual facts which are germane for the adjudication of the
present suit. The defendant made statement against the local authorities
and the Parivartan Panel. Statements of the defendant are not against
the plaintiffs. Alleged interview does not circulated by the defendant
and it was done by a television channel. The defendant was answering
the queries put forth by the television channel.
10. He further pleaded that in and around June, 2016 he
realized that there were some illegal activities being carried out at
Premises No. 69 B occupied by Mr. More and owned by Mr. Bhakare.
On enquiry, the defendant came to know that sex racket was run by Mr.
More. He further gave account of written letter sent to the society and
further actions taken by him. No complaint was made against the
defendant as per information collected from Nehru Nagar Police Station
under R.T.I. Act. The society was run by members of Parivartan Panel
who targeted the defendant without taking steps against Mr. Bhakare.
He further narrated the incident of police raid on premises 69 B on
14/11/2017. He admitted that he had given interview to the news
channel. The defendant has given his opinion based upon his
experiences and it was circulated by news channel upon which the
defendant had no control. He denied to have made any defamatory
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S.C.Suit No. 1581/18. 7 Judgment (Exh.23).
statement against the plaintiffs. The defendant wrote letter dated
15/11/2017 to the plaintiff society pointing out his allegations to have
proved and for taking action against perpetrators. He admitted to have
received notice sent by the plaintiff society. The defendant has not
made any reference of the plaintiff society in his interview. By pointing
out these aspects, the defendant denied case of the plaintiff. He denied
to have posted whatsapp messages on 26/06/2018 on whatsapp group.
He further denied actions taken by the plaintiff society for preventing
acts of Mr. Bhakare. He prayed for dismissal of the suit with
compensatory cost.
11. My learned predecessor framed issues at Exh.8. The
plaintiffs examined PW 1 Dharmendra, plaintiff no.16 on evidence
affidavit (Exh.9). The plaintiffs filed documents with list (Exh.10) and
they are marked as Exh.11 to 21. As the defendant remained absent
continuously, no crossexamination order is passed against the
defendant. The plaintiffs closed evidence vide pursis (Exh.22) on
27/07/2022. Then, matter was kept for evidence of the defendant
continuously for four dates, but the defendant failed to appear and file
evidence. Therefore, evidence of the defendant is closed as per order
passed in roznama dated 03/10/2022. Matter was kept for final
arguments on 19/10/2022. Heard learned counsel Shri Mohan Dhamal
for the plaintiffs on 11/11/2022. None appeared for the defendant for
advancing arguments.
12. I reproduce issues framed at Exh.8 and record my findings
against the same with reasons to follow :
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S.C.Suit No. 1581/18. 8 Judgment (Exh.23).
SR.NO. ISSUES FINDINGS
1. Whether the plaintiffs prove that the
statements made by defendant in his
interview are defamatory to the
plaintiffs ? In the Negative.
2. Whether the plaintiffs prove that they
have suffered damages to the extent of
Rs. 10,00,000/ ? In the Negative.
3. Whether the Court has jurisdiction to
decide the suit ? In the Affirmative.
4. Whether the plaintiffs are entitled for
damages of Rs. 10,00,000/ alongwith
interest @ 18% per annum from
defendant ? In the Negative.
5. What order and decree ? Suit is dismissed.
REASONS
AS TO ISSUES NO.1, 2 and 4 :
13. PW 1 Dharmendra (Exh.9) is plaintiff no.16. He has
deposed that on 14/11/2017, the police raided the ground floor
premises of Bungalow No. 69 B, Mangal Murti owned by Dr. Sitaram S,
Bhakare and at that time, two women were found to be using the said
premises for running illegal immoral business of prostitution. He further
deposed that three victim ladies were found. He has also given account
of registration of Crime No. 317/2017 under Section 370 r/w 34 of the
IPC and Sections 3, 4, 5 and 6 of the PITA Act at Nehru Nagar Police
Station. He has proved correspondence between the parties. After giving
details of above incident, he further deposed that on 14/11/2017 the
defendant gave an interview in Marathi and Hindi language to
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S.C.Suit No. 1581/18. 9 Judgment (Exh.23).
television news channels outside Nehru Nagar Police Station. He has
quoted actual words in Hindi and Marathi language in his deposition.
According to him, the defendant stated in his interviews that a few local
residents and local office bearers might have involved in all these
activities by giving their consent. The defendant has not turned up for
conducting crossexamination of PW 1 Dharmendra. Evidence of the
plaintiffs is unrebutted. The defendant has admitted in his written
statement that he had given interview to television news channels, but
he had denied making of any defamatory statement. He denied
responsibility for circulation of his interview by the news channels. He
has specifically denied averments made in the plaint. In short, contents
of interview given to television news channels are required to be proved
by the plaintiffs.
14. In the light of above discussion, the plaintiffs have stated in
para 3 of the plaint that they have C.D. containing the video recording
of aforesaid interview (Exh.B). Exh.B annexed with the plaint is a paper
signed by the advocate for the plaintiffs having matter that original C.D.
containing the recording of interview given by the defendant will be
produced before the Court at the time of evidence. In short, C.D. of
interview was not placed on record with the plaint. Subsequently, the
plaintiffs filed list of documents (Exh.10) in which reference of pen
drive containing the video recording was made at sr.no.2, but word
“pendrive” are scored and the words “the photographs” are written.
The plaintiffs have placed on record photographs (Exh.12) instead of
pendrive. On perusal of the photographs, it is not clear whether the
defendant had made any such statement defaming the plaintiffs or not.
15. Furthermore, the plaintiffs have not disclosed names of
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S.C.Suit No. 1581/18. 10 Judgment (Exh.23).
particular news channels and date and time of broadcasting the
interview of the defendant on those news channels in the plaint as well
as evidence affidavit (Exh.9). Therefore, circulation of alleged
defamatory statements is not established from available evidence on
record. Similar is the position in respect of whatsapp chat. The plaintiffs
have produced xerox copy of whatsapp chat (Exh.15), but they have
not produced mobile handset having such whatsapp chat. Certficate
under section 65B of the Indian Evidence Act, 1872 is not placed on
record. The plaintiffs have not pleaded details of particular mobile
number used by the defendant for posting whatsapp messages on
whatsapp group “Aaple Kamgar Nagar”. In short, the plaintiffs have not
produced necessary evidence to prove that the defendant had ever
made defamatory statements against the plaintiffs either in interview
given to television news channels or in whatsapp post.
16. Though evidence of PW 1 Dharmendra is unrebutted, it is
not supported with basic evidence demonstrating that the defendant has
made defamatory acts hurting to the reputation of the plaintiffs in the
society at large and he is responsible for circulation of the same. Oral
evidence without evidence in the form of electronic record regarding
defamatory statements is not sufficient to treat the case of the plaintiffs
to have been made out or proved. It is pertinent to note that Section 59
of the Indian Evidence Act, 1872 provides that all facts, except the
contents of documents or electronic record, may be proved by oral
evidence. In short, the plaintiffs have not produced electronic record
which is foundation of their case for damages against the defendant.
For all these reasons, the plaintiffs have failed to prove their case for
damages for want of sufficient evidence. In the result, I record my
findings as to Issues No.1, 2 and 4 in the negative.
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S.C.Suit No. 1581/18. 11 Judgment (Exh.23).
AS TO ISSUE NO. 3 :
17. So far as issue of jurisdiction is concerned, the suit is filed
for damages by the plaintiffs. Dispute between the plaintiffs and the
defendant is relating to alleged individual acts of the defendant and it is
not directly touching to the business of the society. Therefore, civil court
has jurisdiction to deal with the suit for damages. Hence, I record my
finding as to Issue No.3 in the affirmative.
AS TO ISSUE NO. 5 :
18. In the light of my findings as to Issues No.1 to 4, the suit is
liable to be dismissed. Considering nature of the litigation, both sides
can be allowed to bear their own costs. Hence, I pass the following
order :
ORDER
1. S. C. Suit No. 1581/2018 is dismissed.
2. Parties shall bear their own costs.
3. Decree be drawn up accordingly.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 30/11/2022. Mumbai.
1. Dictated on : 28 & 30/11/2022.
2. Transcribed on : 29 & 30/11/2022.
3. Signed on : 01/12/2022.
4. Delivered to Certified :
Copy Section on
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S.C.Suit No. 1581/18. 12 Judgment (Exh.23).
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
01/12/2022. 5.20 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 30/11/2022.
Judgment/Order signed by P.O. on 01/12/2022.
Judgment/Order uploaded on 01/12/2022.
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