SUBHASH CHANDRA & ANR vs. POSITIV TELEVISION (P) LTD & ORS

.* IN THE HIGH COURT OF DELHI AT NEW DELHI

th
% Order delivered on: 15 January, 2015
+ CS(OS) 2777/2014, I.A. Nos.17728/2014, 17729/2014
& 17730/2014

SUBHASH CHANDRA & ANR ..... Plaintiffs
Through: Mr.Aman Lekhi, Sr. Advocate for
Plaintiff No.1.
Mrs.Pratibha M.Singh, Sr.
Advocate with Mr.Tejveer Singh
Bhatia and Mr.Kapil Midha,
Advocates for Plaintiff No.2.

versus

POSITIV TELEVISION (P) LTD & ORS ..... Defendants
Through: Mr.Rajiv Nayar, Sr. Advocate with
Ms.Ranjana Roy Gawai and
Mr.Kirish Gandhi, Advocates for D-1.
Dr.Abhishek Manu Singhvi, Sr.
Advocate with Ms.Anisha Somal
and Mr.Aakash Bajaj, Advocates
for D-5.

CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiffs namely Mr.Subhash Chandra and Zee Media
Corporation Ltd. have filed the present suit for permanent and
mandatory injunction and damages against five defendants. The
grievance of the plaintiffs is about defamatory broadcast made by the
CS(OS) No.2777/2014 Page 1 of 20


defendants against both the plaintiffs. The reliefs sought by the
plaintiffs are as under:
A. Restraining the defendants and its employees/agents
from making any defamatory broadcast against the
plaintiffs and/or its businesses.

B. Mandatory injunction against the defendants its
employees and/or agents directing them to forthwith
remove from their website and from any other website
defamatory material against the plaintiffs.

C. Damages for the defamation already caused to the plaintiffs.

2. It is alleged in the plaint that the defendants have been
telecasting news reports/stories by the defendant No. 1 channels
against the plaintiffs which are defamatory per se . The defendants
knew the fact that the news reports/stories they have been
telecasting are false and per se defamatory but they continued to
telecast it maliciously solely with a view to defame the plaintiffs and
its officials. These programmes were repeatedly broadcasted by the
th th
defendants on various dates from 6 /7 January, 2014 and more
th th th
particularly from 16 March, 2014 to 8 April, 2014 and also on 29
th th
May, 2014 to 30 May, 2014 and thereafter on 4 September, 2014,
th th
5 September, 2014 and on 9 September, 2014 with the sole
intention to cause damage to the reputation and goodwill of the
plaintiffs. The defendants have aired the defamatory programmes at
least 223 number of times against the plaintiffs as on date of filing of
the suit.
CS(OS) No.2777/2014 Page 2 of 20


3. When the suit and interim application was listed before the
Court first time, the order for issuance of summons and notice in the
application was strongly opposed by the defendant Nos.1 and 5
mainly on the reasons that prior to filing of the present suit Essel
Infraprojects Ltd. had filed suit No.645/2014 inter alia against few
defendants which are dragged in the present suit with the same
allegations and same cause of action. The fact of filing of the said suit
has not been disclosed by the plaintiffs before this Court. It is alleged
by learned Senior counsel appearing on behalf of defendant Nos.1
and 5 that in the said suit the interim order was not granted in favour
of Essel Infraprojects Ltd. After few days by changing the name of
the group company the present suit is filed and in fact Essel
Infraprojects Ltd. is also owned by Subhash Chandra who is whole
sole of plaintiff No.2 in the present suit.
4. Dr. A.M. Singhvi, learned Senior counsel appearing on behalf
of defendant No.5 and Mr. Rajiv Nayar, learned Senior counsel
appearing on behalf of defendant No.1 have read the prayer of the
suit filed before Bombay High Court (Bombay Suit) wherein an
injunction was sought from further uttering/ repeating/
writing/publishing/telecasting/airing any programme on news items
thereby making defamatory allegations against Essel Infraprojects
Ltd. Learned Senior counsel submit that in case the entire plaint of
Bombay suit is read in meaningful manner, the character of the
plaintiff i.e. Subhash Chandra herein would be revealed. Both
learned Senior counsels state that it was the duty of the plaintiff to
disclose said material fact. The plaintiffs have also suppressed a
CS(OS) No.2777/2014 Page 3 of 20


criminal complaint bearing No.176/01 of 2014 which was filed
before the Court of Chief Metropolitan Magistrate against the
defendants for offences under Section 420, 499 and 500 read with
Section 120 B and 34 of the Indian Penal Code, 1860. The plaintiffs
have also not disclosed the order of this Court passed in Company
Appeal No.25/2014 filed by defendant No.1 against the order dated
th
9 May, 2014 wherein the operation of the said order was stayed.
Thus, it is stated by both the learned Senior counsels that the
plaintiffs have not approached this Court with clean hands and in fact
this court should not grant any indulgence as the plaintiffs have tried
to overreach the Court and abuse the process of this law by
concealing material facts. Even otherwise, it is stated that on merit
the suit itself is not maintainable as the plaint has not been properly
signed and verified and secondly the suit against the defendant No.5
is not maintainable as the said defendant No.5 Mr.Naveen Jindal has
nothing to do with defendant No.1.
5. Mr.Rajiv Nayar, learned Senior counsel appearing on behalf of
defendant No.1 has refuted the argument of the plaintiffs that since
the cause of action was in both suits was different coupled with the
fact that counsel who has prepared the present case is not aware
about Bombay suit, thus, there is no legal harm if the factum of the
earlier suit was not disclosed. Mr. Nayar says that the counsel who
has prepared the second suit might be aware in view of the reason
that the nature of drafting of the second plaint is similar and various
paras are common in both the suits. He has referred to paragraph
Nos. 9, 10 and 11 of the suit filed before this Court to show that the
CS(OS) No.2777/2014 Page 4 of 20


same have been lifted from paragraph Nos. 14,15 and 16 of the suit
filed before the Bombay High Court.
6. Dr. A.M. Singhvi says that the effect of the injunction sought by
way of both the suits would be the same i.e. televising news
programme and displaying information that furthers public interest.
He has referred to the reliefs clause in both the matters for the
purpose of comparison. The same are read as under :

CS(OS) No.2777/2014 Page 5 of 20

CS(OS) No.2777/2014 Page 6 of 20

7. Mr. Singhvi has placed reliance on the case of Satish Khosla
v. Eli Lilly Ranbaxy, 1998 (44) DRJ 109 (DB), wherein this Court
compared the reliefs sought by way of two suits and observed as
under :

14. Was it not obligatory on the part of the respondent to
disclose to the Court that in an earlier suit filed by it, the
Court had not granted any stay in its favour and if on such
a disclosure having been made the Court still granted stay
in favour of the respondent, it could be said that the
respondent had not concealed any material fact from the
Court. But not mentioning anything about the Court having
not granted any stay in similar circumstances in favour of
the respondent in the earlier suit, it appears that the
respondent had not only concealed material facts from the
Court but had also tried to over reach the Court. Being
unsuccessful in obtaining stay in Suit No. 3064/96, it was
CS(OS) No.2777/2014 Page 7 of 20

the present suit against the plaintiffs for the purpose of non disclosure
of material information. It is argued by him that the plaintiffs have
approached this Court after not being able to get an interim relief at
the Bombay High Court. On account of the similarity between the two
suits and the reliefs claimed there under, the factum of having filed
the suit before the Bombay High Court, becomes a material fact.
9. Mr. Singhvi argued that the plaintiffs’ argument that non
disclosure of the suit filed before the Bombay High Court does not
amount to a material fact, has no force and does not hold good
particularly since the relief(s) sought/effect of the prayer(s) sought in
both the suits, is the same. He relied upon the case of M/s. Seemax
Construction (P) Ltd. vs. State Bank of India , AIR 1992 Del 197,
wherein this Court was encountered with a similar situation of non
disclosure of a material fact and it was observed as under :
“11. I have already noticed herein before the prayers made
in the two earlier suits filed by the plaintiff as also the pleas
taken in the plaint filed in court at Bikaner and the pleas
taken in the present suit. Mr. Bhasin, learned counsel for
plaintiff, submits that the two suits filed earlier were based
on different cause of action whereas the present suit is
based on a different cause of action and as such the filing
of the said suits was not a material fact requiring disclosure
and that being so there is -no suppression of material fact
from this Hon'ble Court. Counsel contends that it is one
thing to say that it would have been desirable to disclose
CS(OS) No.2777/2014 Page 8 of 20


the filing of the earlier suits and it is altogether different to
say that there was obligation on the part of the plaintiff to
make a disclosure of the filing of the said suits. In so far as
the present suit is concerned, Mr. Bhasin contends that, if
at all, the present case falls in the former category. I do not
agree. The contention that the filing of the said two earlier
suits was not a material fact is misconceived.....

It is submitted that a natural corollary that follows from non
disclosure of a material fact is dismissal of the suit on merits.
10. Mr. Singhvi argues that even otherwise irrespective of whether
it was material fact or not, it was the duty of the plaintiffs to disclose
the said fact as the party who approaches the Court with unclean
hands is not entitled to justice and the applicability of this principle
has been unequivocally extended to the petitions filed under Articles
32, 226 and 126 of the Constitution, as well as cases instituted in
other Courts and judicial fora, alike. Reliance in this regard is placed
on the case of Ramjas Foundation vs. UOI , (2010) 14 SCC 38.
11. In United India Insurance Co. Ltd. vs. Rajendra Singh ,
(2000) 3 SCC 581, the Supreme Court observed that “ Fraud and
justice can never dwell together” (fraus et just runquam cohabitant )
CS(OS) No.2777/2014 Page 9 of 20


and it is a pristine maxim which has never lost its temper over all
these centuries.
The ratio laid down by the Supreme Court in various cases is
that dishonesty should not be permitted to bear the fruit and benefit
the persons who played fraud or made misrepresentation and in such
circumstances the Court should not perpetuate the fraud.
12. In the case of Meghmala v. G. Narsimha Reddy , (2010) 8
SCC 383 it was observed that fraud is an intrinsic, collateral act, and
fraud of an egregious nature would vitiate the most solemn
proceedings of courts of justice. Fraud is an act of deliberate
deception with a design to secure something, which is otherwise not
due.
13. In M/s Seemax Construction (P) Ltd. (supra) , after finding non
disclosure of material fact, this Court observed as follows :

made to S.P. Chengalvaraya Naidu v. Jagannath and Ors. , AIR
1994 SC 853, wherein it was held that the Courts of law are meant
for imparting justice between the parties. One who comes to the
CS(OS) No.2777/2014 Page 10 of 20


Court, must come with clean hands. “It can be said without hesitation
that a person whose case is based on falsehood has no right to
approach the court. He can be summarily thrown out at any stage of
the litigation. A litigant, who approaches the court, is bound to
produce all documents executed by him which are relevant to the
litigation. If he withholds a vital document in order to gain advantage
on the other side then he would be guilty of playing fraud on the court
as well as on the opposite party.”
15. Mr. Singhvi argues that the plaintiffs herein are not only trying
to claim the same relief before two different fora, but is also trying
their chances before the two different fora, at the same time. He
referred the decision of this Court in Sandeep Kumar vs. Nihal
Chand , (2014) 207 DLT 104, wherein it was observed as follows :

written statement or reply has been filed, even few defendants are
yet to be served. It is also admitted position in the present matter that
the plaintiffs have not derived any benefit of injunction in their favour.
Before passing any order for issuance of summons and notice, it is
necessary to discuss the plaintiffs’ case.
CS(OS) No.2777/2014 Page 11 of 20


17. It is submitted by Mr. Aman Lekhi and Ms. Pratibha M. Singh,
learned Senior counsel that the suit in Bombay relates only to a
th
Press Conference held on 9 of May, 2014 and the telecast of
programme “Ajab M.P. Ghazab Ghotala” based on the said press
conference. The said press conference was relating to some land
deals in Madhya Pradesh, however, the present suit relates to
th
programmes that were repeatedly broadcasted on 6 January, 2014
th th th
to 7 January, 2014 and thereafter from 16 March, 2014 to 8 April,
th th
2014 and also on 29 May, 2014 to 30 May, 2014 and thereafter on
th th th
4 September, 2014, 5 September, 2014 and on 9 September,
2014 on the channels of defendant No. 1 wherein various defamatory
remarks were made against the plaintiffs in relation to various judicial
proceedings pending in various Courts in Delhi. The suit filed before
the Bombay High Court relates to a completely different cause of
action, unrelated programs and stories published and broadcasted by
the defendants therein. Further the plaintiffs before this Court are not
parties to the Bombay suit. The table of comparison between the
Delhi suit and the Bombay suit filed by the defendants is nothing but
an attempt to mislead this Court. The pleadings have to be read in its
entirety and as a whole to ascertain its true import. It is not
permissible to cull out a sentence or a passage and to read it out of
context in isolation and the pleading has to be constructed as it
stands and without any addition, substraction or change of its
apparent grammatical sense.
18. It is submitted on behalf of the plaintiffs that there is main
distinction between a statement of facts disclosing cause of action
CS(OS) No.2777/2014 Page 12 of 20


and the relief sought for. The reliefs claimed do not constitute a
cause of action and on the contrary, the reliefs are entitlement on the
basis of the facts pleaded. Reliance in this regard is placed on
Sopan Sukhdeo Sable & Ors. Vs. Assistant Charity
Commissioner, (2004) 3 SCC 137 .
19. It is the submitted by the learned Senior counsel appearing on
behalf of plaintiffs that there is no suppression of material fact. The
present suit and the suit in Bombay are not same, bearing different
and distinct cause of action. It is submitted that the law provides that
a party must include all the claims arising out of one cause of action
in one suit. The proposition is not disputed by the plaintiffs however it
is submitted that the same is relatable to a “cause of action” and not
to the reliefs claimed in the suit. Therefore, precise facts are required
to be included about whole claim arising from one and the same
cause of action and not that every suit shall include every claim or
every cause of action. The decisions referred by the learned Senior
counsel on behalf of the plaintiffs are Payana Reena Saminathan
Vs. Pana Lana Palaniappa , (1914) 41 IA 142 and
Sandeep Polymers Pvt. Ltd. Vs. Bajaj Auto Ltd. & Ors., (2007) 7
SCC 148.
20. It has been submitted that by way of abundant caution, the
plaintiffs are trying to approach two different Courts for seeking the
same reliefs and so an application praying to amend the prayers in
the Bombay suit restricting the same only with respect to the subject
th
matter as contained in the Press Conference dated 9 May, 2014
CS(OS) No.2777/2014 Page 13 of 20


was filed in the Bombay suit. The said application was allowed by the
st
Bombay High Court vide Order dated 1 December, 2014.
The Bombay suit has no effect whatsoever on the merits of the
present case. The suppressed facts must be a material one in the
sense that had it not been suppressed it would have had an effect on
the merits of the case. The learned Senior counsel for the plaintiffs
has relied upon the following judgments:
A. S.J.S Business Enterprises Pvt. Ltd. Vs. State of Bihar &
Ors. – (2004) 7 SCC 166.

B. Institute of Inner Studies Vs. Charlotte Anderson – 2014
(57) PTC 228.

21. It has further been submitted that as the causes of action in
both the suits are completely different and the reliefs claimed in the
suit have to be viewed in the context of the subject matter of the suit.
Even the subject matter of both the suits is completely distinct and
different. Reliance in this regard is placed on the following
judgments:-

CS(OS) No.2777/2014 Page 14 of 20


22. It has been submitted by Mr. Lekhi, learned Senior counsel
appearing on behalf of the plaintiffs that in the present case the
defendants through their TV channels are broadcasting news
reports/stories against the plaintiffs which are defamatory per se . One
of such stories ‘Salakhho Ke Peeche Honge Chandra?’ with plaintiff
No.1's photograph was telecasted by the Focus TV channel. It is
contended by the plaintiffs that one of the channels is owned by the
defendant No.5.
23. It is submitted that the decisions referred by defendants have
no bearing as the same are out of context. The plaintiffs have tried to
distinguish the said decisions. It is alleged that the judgment of
Seemax Constructions Pvt. Ltd. (supra) is distinguishable on the
facts. In fact, only the last portion of the judgment is reproduced
while ignoring the facts of the said case. Similarly, in all the other
judgments relied on by the defendants including Ramjas Foundation
(supra), the facts are completely different from the facts in the
present case. The case of Ramjas Foundation (supra) was
pertaining to repeated challenge to the same acquisition proceedings
at different stages.
24. With regard to other technical objections raised by the
defendant No.1 that the plaint has not been instituted by an
authorized person on behalf of the plaintiff against defendant No.1,
it is stated that the present suit has been filed on behalf of plaintiff
No.2 Company by Mr. Gulshan Sachdev by virtue of a Board
Resolution authorizing him to represent plaintiff No.2 Company in any
proceedings before any court of law. It is submitted that Mr. Gulshan
CS(OS) No.2777/2014 Page 15 of 20


Sachdev had two board resolutions, one authorizing him specifically
for cases against Mr. Naveen Jindal and another a general resolution
for all legal matters, however, by an inadvertent error only one board
resolution was filed along with the plaint. A copy of the board
resolution authorizing Mr. Gulshan Sachdev to represent plaintiff
No.2 in any legal proceedings has been filed now. It is submitted that
in any case, plaintiff No.1, has also signed and verified the present
plaint and has also filed an affidavit swearing to the contents of the
plaint.
25. With regard to other objection raised by the defendant No.1
that Mr. Naveen Jindal is not a proper and necessary party as he
has nothing to do with the defendant no.1 and the order of the
Company Law Board has been stayed by this Court, it is submitted
that the TV channels of defendant No.1 have been doing nothing but
showing praises for Mr. Naveen Jindal and his family members on
one hand and on the other hand is broadcasting defamatory
programmes against the plaintiffs, therefore, defendant No.5 is a
proper and necessary party. The stay granted by this Court against
the order of the Company Law Board has no relevance to the merit of
the present case.
26. As far as merit of the present case is concerned, I am not
inclined to decide anything, however, the legal position of distinct
causes of action is clear that in the case of continuous tort a fresh
period of limitation begins to run at every moment of the time when
such tortuous act is committed by the other side, the complainant get
CS(OS) No.2777/2014 Page 16 of 20


a fresh cause of action to come to the Court by appropriate
proceedings.
27. In case the plaint of the Bombay suit is read in a meaningful
manner, prima facie it appears to the Court that the Bombay suit
th
relates only to a press conference held on 9 May, 2014 with regard
to the programme ‘Ajab M.P. Ghazab Ghotale’ based on such press
conference.
28. The present suit relates to different programmes broadcasted
by the defendant No.1 are prior to the first suit and substantially after
filing of the Bombay suit. The said programmes and allegations with
regard to plaintiff No.1 are different and on different date though in
Bombay suit in the reliefs claimed, no doubt the prayer was also
sought pertaining to further uttering/repeating/ writing/publishing
/telecasting/airing. But it appears to the Court that the said
expression in the prayer clause is with regard to the programme and
press conference ‘Ajab M.P. Ghazab Ghotale’ and does not pertain to
the subject matter of the second suit.
29. It is settled law that the subsequent developments that have an
impact on the rights and obligations of the parties can be taken into
consideration by the court while granting the relief prayed for.
Reliance in this regard is placed upon the following judgments :
 Pasupuleti Venkateswarlu v. The Motor and General
Traders -(1975) 1 SCC 770

 Hasmat Rai v. Raghunath Prasad (1981) 3 SCC 103

CS(OS) No.2777/2014 Page 17 of 20


 Baba Kashinath Bhinge v. Samast Lingayat Gavali 1994
(3) Suppl. SCC 698

 Sheshambal v. Chelur Corporation Chelur Building ,
(2010) 3 SCC 470.

30. Mr. Lekhi, learned Senior counsel has rightly stated that the
first case i.e. Bombay suit was pertaining to a press conference held
th
on 9 May, 2014 and not pertaining to fresh cause of action which
has occurred against the defendants whereby various defamatory
remarks were made against the plaintiffs who are not the parties to
the Bombay suit. He submits that the alleged act of the defendants in
the present case is in the nature of tort and they are intentionally
doing such act in order to make defamatory remarks against the
plaintiffs. To this extent, there is a force in the submission of the
learned Senior counsel for the plaintiffs. The plaintiffs’ case is that it
is a continuing wrong, a new and fresh case of action, therefore, the
plaintiffs are entitled to choose to initiate the action against the
defendants in the case of continuing torts. Therefore, prima facie this
Court is of the view that the second suit in kind of circumstances is
maintainable.
31. One of the stories gives an impression to the general public
that the plaintiff No.1 has been sentenced for something which he
has done. The telecasting of such stories would definitely give rise to
a fresh cause of action as the said Focus channel has already
pronounced a judgment when even the trial before court is yet to
completed. In fact, it is in bad taste. The said story was telecasted
when hearing in the matter was being conducted. No view/comments
CS(OS) No.2777/2014 Page 18 of 20


were obtained from plaintiff No.1 (who was targeted in the said story)
which is necessary.
It is very unfortunate that attacks and counter-attacks
throughout campaign by the parties could have been avoided by
settling the matter as both the parties have good status in the society.
Even during hearing, the matter was discussed for settlement that
from today onwards, parties to the suit should not make defamatory
remarks against each other. With regard to previous litigations, the
same may continue. However, the said proposal could not be
materialised.
32. Admittedly in the plaint, the plaintiffs have not disclosed the
following facts :
a) about the pendency of Bombay suit bearing No.645/2014
b) pendency of criminal complaint bearing No.176/01 of 2014
th
c) the interim order dated 26 May, 2014 passed in Criminal
Appeal No.25/2014 staying the operation of an order dated
th
9 May, 2014.
33. Whether these are material facts or not and these facts have
any bearing in the order to decide the controversy raised in the
present suit, I do not wish to decide the said issues. However, I am
clear in my mind that these facts mentioned in preceding Paras
ought to have been mentioned in the present suit even if these may
not have been material facts. Under these circumstances, to my
mind, the plaint lacks from certain facts which should have been
disclosed in order to avoid any objection from the other side. As no
benefit or advantage of any kind is granted to the plaintiffs till date, I
CS(OS) No.2777/2014 Page 19 of 20


consider proper that one opportunity should be granted to the
plaintiffs in the interest of justice, equity and fair-play either to amend
the plaint or to file the fresh suit mentioning all the details on or
before the next date. The defendants objections, if any, raised would
be decided on merit by the Court.
nd
34. List the matter before the Roster Bench on 2 February, 2015
for directions.

(MANMOHAN SINGH)
JUDGE
JANUARY 15, 2015
CS(OS) No.2777/2014 Page 20 of 20