Exide Life Insurance Company Ltd v. Mr Mithun Garg and Another

RAJIV SAHAI ENDLAW, J. APRIL 11, 2018 "bs"

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 11th April, 2018. + CS(OS) 15/2016, OA No.69/2017 & IA No.240/2016 (u/O XXXIX R-1&2 CPC) EXIDE LIFE INSURANCE COMPANY LTD. ..... Plaintiff Through: Mr. Siddharth Agarwal, Mr. Adit S. Pujari, Mr. Faraz Maqbool, Ms. Surabhi Dhar and Mr. Rohan Kothari, Advs. Versus MITUN GARG ..... Defendant Through: In person. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff instituted this suit against the now sole defendant Mitun Garg as well as against one Ms. Sana Khan for (i) recovery, jointly and severally, of compensation in the sum of Rs.2,50,00,000/- for the loss sustained by the plaintiff on account of loss of reputation caused by defamatory statements and malicious falsehoods published by the defendants; (ii) permanent injunction restraining the defendants from publishing, communicating and circulating statements which are defamatory of the plaintiff, alleging that the plaintiff aided and abetted the alleged accused and did not take any action upon the complaints of the defendant No.2 Sana Khan; (iii) mandatory injunction directing the defendants to make a public apology in a newspaper with national circulation; (iv) mandatory injunction directing the defendant No.1 Mitun Garg to remove all such defamatory posts, statements or pictures published on social media; and, (v) for recovery of costs of the suit jointly and severally from the two defendants. 2. The suit was entertained and vide ex-parte ad-interim order dated 13th January, 2016, the then defendant No.1 Mitun Garg directed to remove the postings made by him on his Facebook profile and the defendants restrained from, in any manner, similarly defaming the plaintiff. The said order has continued till now. 3. The plaintiff filed replications to separate replies claimed to have been received by the plaintiff from the two defendants, annexing thereto the copies of the replies from the defendants received by the plaintiff. However the said replies were not filed in the court. The defendants No.1&2 however subsequently through advocate filed a joint "reply" to the plaint annexing documents therewith and which is on record. On 21st February, 2017, a new counsel for defendant No.2 sought time to file written statement and which was allowed by the learned Joint Registrar vide order dated 21st February, 2017. 4. The plaintiff preferred a Chamber Appeal being OA No.69/2017, objecting to the order aforesaid of Joint Registrar permitting the defendant No.2 to file written statement. The said Chamber Appeal came before this Court on 17th April, 2017 when it was felt that the suit itself should not linger any further and the counsel for the plaintiff was requested to obtain instructions, whether subject to a decree for permanent injunction being granted, the plaintiff was willing to give up the claim for damages and if not, the justification of such claim. On 28th April, 2017, while the defendant No.1 appeared in person, the defendant No.2 appeared along with Advocate and stated that on the complaint of the defendant No.2, a First Information Report (FIR) had been registered against the officials of the plaintiff and that the defendant No.2, without prejudice to her rights and contentions was willing to make a statement that she will not publish anything qua the plaintiff in future. The defendant No.1 appearing in person though stated that he had not published anything but stated that he also was willing to make such a statement. However, the counsel for the plaintiff stated that the plaintiff was not satisfied merely with the relief of permanent injunction and wanted to press the suit for damages. On enquiry, whether the plaintiff in its suit for defamation is entitled to damages as a matter of right, the counsel for the plaintiff drew attention to para 18 of Nadirshaw Hormusji Sukhia Vs. Pirojshaw Ratanji Ratnagar MANU/MH/0001/1913 but which did not appear to lay down any such absolute proposition. On request of the