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 order of the Court.
In the circumstances, the notice of motion is dismissed with costs.
Bombay High Court
Jumbo World Holdings Limited And 2 ... vs Bennett,Coleman And Co.Ltd And 3 ... on 12 November, 2014
Bench: K.R. Sriram
Ciation; 2015 (4) MHLJ 445
1 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 :
" 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."
4 In view of these averments in the plaint, the defendants before filing
written statement, took out a chamber summons and the relief sought in the chamber 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.
5 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.
6 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').
7 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.
8 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 Shraddha Talekar PA 4/7 5 35..s.1458.2007.doc 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.
9 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.
10 With this background, let us examine - whether the defendants are entitled to the relief sought.
11 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 Shraddha Talekar PA 5/7 6 35..s.1458.2007.doc statement albeit with reservations. According to the counsel for the 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.
12 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 Shraddha Talekar PA 6/7 7 35..s.1458.2007.doc order of the Court.
13 In the circumstances, the notice of motion is dismissed with costs.
The defendants to pay a sum of Rs.25,000/- to the plaintiffs as costs of defending this notice of motion.
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