NOTICE OF MOTION NO. 1215 OF 2014
IN
SUIT NO. 1458 OF 2007
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Jumbo World Holdings Limited & Ors.Vs. Bennet Coleman and Co. Ltd. & Ors.
CORAM : K.R.SHRIRAM, J.
PRONOUNCED ON : 12TH NOVEMBER , 2014
The defendants have taken out this notice of motion for dismissal of
the suit for non-compliance of the order of inspection dated 17th August
2009 passed by this Court and in the alternative to strike out the pleadings
contained in paragraph nos.10-14 and prayer clause (a) in the plaint and also
issue no.4 as settled by this Court vide its order dated 19th August 2014.
2
Before we proceed further let us see what is claimed in the suit. The
plaintiffs have filed this action claiming a sum of Rs.100 crores for
defaming the plaintiffs. It is the case of the plaintiffs that in an Article
written by the 3rd and 4th defendant and carried in the business Times
Supplement of the Mumbai Edition of the Times of India, the defendants
purportedly sought to report an ongoing litigation between the plaintiffs and
one Dynasty Developers Private Limited and the Article read as under :
ig
“
Early last year Dynasty, a company of the Embassy Group
had acquired Gordon Woodroofe which owned a 90 acre plot and
Pallavaram, a southern suburb of Chennai for Rs.252 crore.
Gordon Woodroffe was the last jewel in the empire that got sold.
At that time, the transaction was the largest land deal in Chennai.
Dynasty had then paid an advance of Rs.25 crore to the Jumbo
Group.
All went well until property prices in Chennai started
moving upwards. The change in the real estate market prompted
the Jumbo group to rethink the sale and demand a higher price.”
According to the plaintiffs this article contained numerous false allegations
made with the intent to injure the reputation, moral character and credibility
of the plaintiffs among the industrial/ business community and otherwise.
3
In the plaint, paragraph 4 reads as under :
“The plaintiffs state that the above article contained numerous
false allegations made with intent to injure the reputation, moral
character and credibility of the
plaintiffs among the
industrial/business community and otherwise. The plaintiffs
crave leave to refer to and rely upon the correct facts including
those in respect of its ongoing disputes before the Hon'ble
Arbitral Tribunal and the Madras High Court as against Dynasty
if required. The plaintiffs are not presently setting out the
dealing with the same, since these proceedings are subjudice.”
In view of these averments in the plaint, the defendants before filing
the written statement, took out a chamber summons and the relief sought in
the chamber summons was as under :-
(a) that the Hon'ble Court be pleased to direct the Advocate for
the plaintiffs to give inspection of papers and proceedings of the
ongoing dispute before the Hon'ble Arbitral Tribunal and the
Madras High Court referred to and relied upon by the plaintiffs
in paragraph No.4 of the plaint, to enable the Defendants to file
their written statement.
At the hearing of the chamber summons, this Court on 17th August
2009, passed the following order :
1.
There can be no objection to the said Chamber Summons
as it seeks inspection of the papers and proceedings expressly
referred to and relied upon by the plaintiffs in the Plaint.
2.
The Chamber Summons is made absolute in terms of
prayer (a).
3.
The Chamber Summons is accordingly disposed of.
Following the order, the defendants called upon the plaintiffs to give
inspection of the documents referred to and relied upon in the plaint and in
particularly the papers and proceedings of the ongoing dispute before the
Hon'ble Arbitral Tribunal and the Maharashtra High Court referred to in
paragraph 4 of the plaint herein (hereinafter referred to as 'the said
proceedings').
It is necessary to mention that the chamber summons was taken out
for inspection to enable the defendants to file the written statement. The
plaintiffs, in response, to the letter of 9th November 2009 from the
defendants' advocate gave inspection but did not give inspection of the said
proceedings and informed the defendants that they are not relying upon the
same.
This is the cause for the defendants' grievance in this notice of
motion.
The counsel for the plaintiffs relied upon two judgments one of the
Apex Court in the matter of M/s.Babbar Sewing Machine Company Vs.
Trilok Nath Mahajan1 and the other of the Madhya Pradesh High Court in
the matter of Indore Development Authority Vs. Satyapal Anand and Anr. 2
Relying on these two judgments, the counsel for the plaintiffs submitted
that under Order XI, Rule 21 of the Code of Civil Procedure Code, 1908
wherein the
plaintiffs fails to comply with any order for discovery or
inspection of the documents, the suit is liable to be dismissed for want of
prosecution. The counsel, of course, agreed that the judgment do say that the
provisions of Order XI, Rule 21 of CPC are stringent provisions, to be
applied only in extreme cases and the test laid down is whether the default is
1 1978 (4) 188
2 AIR 2000 Madhya Pradesh 74
willful. The counsel also submitted that as per the Black's Law Dictionary,
the meaning of 'Willful' is voluntary and intentional but not necessarily
malicious and if the Court is satisfied that the plaintiffs are keeping back the
documents which are demanded by the defendants willfully, the Court has
power to punish the plaintiffs for adopting such evasive and tricky attitude
for the purpose of suppressing the truth from the notice of the Court.
The stand of the defendants is that they are not relying upon the
documents of the said proceedings and hence giving inspection of the said
proceedings did not arise. The counsel for the defendants states that the
plaintiffs should have made this statement before the order of 17 th August
2009 was passed in the Chamber Summons and at this stage cannot back
off.
With this background, let us examine - whether the defendants are
entitled to the relief sought.
The defendants have sought inspection of the said proceedings to
enable the defendants to file their written statement. The admitted the fact
that even though the said proceedings were not made available for
inspection, the defendants have still gone ahead and filed the written
According to the counsel for the
statement albeit with reservations.
defendants, these documents are necessary for them to prove their case that
what they have stated in the newspaper article was correct. At the same
time, the plaintiffs had no answer when asked as to how without the said
proceedings, was the newspaper article published.
In the order dated 17.08.2009, the plaintiffs were directed to give
inspection of the said proceedings expressly relied upon by the plaintiffs in
the plaint. Therefore, when the plaintiffs state that they are not relying upon
the said proceedings, the question of giving inspection also does not arise.
In fact, in the plaint, the plaintiffs do not even state that they are relying
upon the said proceedings. What the plaintiffs have stated is that “the
plaintiffs crave leave to refer to and rely upon the correct facts including
those in respect of its ongoing disputes before the Hon'ble Arbitral Tribunal
and the Madras High Court as against Dynasty if required”. Even in the list
of documents annexed to the plaint, the plaintiffs have not mentioned about
the said proceedings. Therefore, in my view, there is no willful default on
the part of the plaintiffs in not giving inspection of the said proceedings. I
find no willful default as contemplated by the Apex Court in M/s. Babbar
Sewing Machine Company (supra).
I do not find any obstinacy or
contumacy on the part of the plaintiffs or willful attempt to disregard the
In the circumstances, the notice of motion is dismissed with costs.
order of the Court.
The defendants to pay a sum of Rs.25,000/- to the plaintiffs as costs of
defending this notice of motion.
(K.R. SHRIRAM, J.)
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