Harper Collins Publishers India Pvt. Ltd. vs Mr. Rana Kapoor & Ors.

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 24.08.2026
Judgment pronounced on: 06.11.2026

# CNR No. DLHC010426102024
+ FAO 228/2024, CM APPL. 41177/2024 (Stay), CM APPL.
41178/2024 (Ex.) & CM APPL. 43347/2024 (To place on
record addl. Documents)

HARPER COLLINS PUBLISHERS INDIA PVT. LTD.
.....Appellant
Through: Mr. Essenese Obhan, Ms.
Ashima Obhan, Ms. Yogita
Rathore and Mr. Tushar
Chauhan, Advocates.
versus

MR. RANA KAPOOR & ORS. .....Respondents
Through: Mr. Naman Joshi, Mr. Guneet
Sidhu and Mr. Aakash Deep
Singh, Advocates for R-1.
Mr. Percival Billimoria, Senior
Advocate along with Ms.
Nattasha Garg, Mr. Anubhav
Dubey, Mr. Thakur Ankit
Singh, Ms. Rachita Sood, Ms.
Priyamvada Paneru, Ms. Liza
Arora and Mr. Anandi Katiyar,
Advocates for R-2.

# CNR No. DLHC010428932024
+ FAO 230/2024, CM APPL. 41371/2024 (Interim Relief) & CM
APPL. 54953/2025 (For Dispensation of Rejoinder Arguments
o/b of the Appellant)

PAVAN CHAND LALL .....Appellant
Through: Mr. Percival Billimoria, Senior
Advocate along with Ms.
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:06.11.2026
17:40:23
FAO 228/2024 and connected matter Page 1 of 80

Nattasha Garg, Mr. Anubhav
Dubey, Mr. Thakur Ankit
Singh, Ms. Rachita Sood, Ms.
Priyamvada Paneru, Ms. Liza
Arora and Mr. Anandi Katiyar,
Advocates.
versus

RANA KAPOOR & ORS. .....Respondents
Through: Mr. Naman Joshi, Mr. Guneet
Sidhu and Mr. Aakash Deep
Singh, Advocates for R-1.
Mr. Essenese Obhan, Ms.
Ashima Obhan, Ms. Yogita
Rathore and Mr. Tushar
Chauhan, Advocates for R-2.

CORAM:
HON'BLE MR. JUSTICE HARISH VAIDYANATHAN
SHANKAR

J U D G M E N T
HARISH VAIDYANATHAN SHANKAR, J.
1. The present Appeals, being FAO No. 228 of 2024, preferred by
1
Harper Collins Publishers India Pvt. Ltd. and FAO No. 230 of
2024, preferred by Pavan Chand Lall, have been filed under Order
XLIII Rule 1(r) read with Sections 104 and 151 of the Code of Civil
2
Procedure, 1908 , arising out of the common order dated
3

10.07.2024 passed by the learned District Judge-07, Central
4 5
District, Tis Hazari Courts, Delhi in CS No. 356/2022 , titled Rana
Kapoor v. Harper Collins Publishers India Pvt. Ltd. & Ors.

1
HarperCollins
2
CPC
3
Impugned Order
4
learned Trial Court
5
Suit
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BHATIA
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2. Two separate appeals have been preferred assailing the
aforesaid Impugned Order. The first appeal, preferred by
HarperCollins, arrays Mr. Rana Kapoor as Respondent No. 1, Mr.
Pawan Chand Lall, the author of the book titled “Yes Man: The
6
Untold Story of Rana Kapoor” , as Respondent No. 2, while
Respondent Nos. 3 and 4 are pro forma parties who have not entered
appearance and whose presence is stated to be not material for the
adjudication of the present Appeal.

3. The second Appeal has been preferred by Mr. Pawan Chand
Lall, wherein Mr. Rana Kapoor is Respondent No. 1, HarperCollins
is Respondent No. 2, and Respondent Nos. 3 and 4 are the same pro
forma parties.
4. Since both the Appeals arise from the same Order and involve a
common subject matter, namely , the legality of the restraint imposed
upon the publication, circulation and distribution of the Subject Book,
the Appeals are being heard together and are being disposed of by this
common Judgment.
5. For the sake of convenience, the parties shall hereinafter be
referred to by their respective names.

BRIEF FACTS:
6. The dispute has its genesis in the publication of the Subject
Book authored by the Appellant in FAO No. 230 of 2024, Pavan
Chand Lall, and published by the Appellant in FAO No. 228 of 2024,
HarperCollins.
7. The Subject Book was published on 22.12.2020 and concerns
the life and career of Respondent No.1, Rana Kapoor, particularly in

6
Subject Book
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BHATIA
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7
the context of the rise and subsequent crisis of Yes Bank Limited .
8. Mr. Rana Kapoor was the co-founder, former Managing
Director and Chief Executive Officer of Yes Bank, which was
established in 2003 and, over the years, became a significant private
sector bank.
9. The affairs of Yes Bank and the role of Respondent No.1
therein came under public scrutiny, particularly after proceedings
were initiated by the Directorate of Enforcement and the Central
Bureau of Investigation in March 2020. The matter received extensive
coverage in the print and electronic media. The Subject Book was
thereafter published on 22.12.2020 and, according to the Appellants,
remained in circulation thereafter for a period from 22.12.2020 to
10.07.2024.
10. The Appellants also rely upon various articles, news reports and
other material concerning Respondent No.1 which had been published
and circulated in the public domain. One such publication relied upon
in the present proceedings is the article titled “No real clue- What
8
Rana Kapoor told me when I asked him why Yes Bank failed” .
The proceedings also concern another article titled “Yes Man- New
book maps Yes Bank‟s rise and fall through the story of Rana
9
Kapoor” and an interview titled “Yes Bank co-founder Rana
Kapoor was extremely ambitious, didn‟t hesitate to take
10
shortcuts” .
11. Prior to the institution of the suit from which the present
Appeals arise, Mr. Rana Kapoor had instituted proceedings against

7
Yes Bank
8
Article-I
9
Article-II
10
Subject Interview
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BHATIA
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another publisher, namely Penguin Random House India Pvt. Ltd. &
Ors., in CS No. 581/2021, in relation to allegedly defamatory material
concerning him.
12. The circumstances surrounding the aforesaid proceedings and
the date on which Mr. Rana Kapoor claims to have acquired
knowledge of the Subject Book have also been relied upon by the
Appellants in the present proceedings.
13. Mr. Rana Kapoor thereafter instituted the Suit before the
learned Trial Court seeking, inter alia , permanent injunction
restraining the Appellants from selling, distributing and circulating the
Subject Book.
14. The suit was founded on the allegation that the contents of the
Subject Book, as also the Articles and Subject Interview, were
defamatory and infringed his rights relating to reputation, privacy and
personality, besides allegedly prejudicing his right to a fair trial.
15. During the course of the proceedings, the Appellant, Pawan
Chand Lall, was proceeded ex parte by the learned Trial Court. The
application under Order XXXIX Rules 1 and 2 of the CPC was
thereafter heard, and the arguments were ultimately concluded, and
the learned Trial Court pronounced the Impugned Order on
10.07.2024.
16. By the Impugned Order, the learned Trial Court allowed the
application under Order XXXIX Rules 1 and 2 CPC and, inter alia ,
restrained the defendants, their associates, agents and other persons
acting on their behalf from selling, distributing or circulating the
Subject Book during the pendency of the suit. The learned Trial Court
further restrained the defendants from authoring, making, publishing,
republishing, circulating or communicating to the public defamatory,
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BHATIA
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libellous or slanderous statements against Mr. Rana Kapoor by way of
the Subject Interview and Articles-I and II, and directed removal of
the said Articles and Interview from the concerned websites and
YouTube channels.
17. Aggrieved by the aforesaid directions, HarperCollins and Pavan
Chand Lall, respectively, have preferred the present Appeals.

SUBMISSIONS ON BEHALF OF HARPER COLLINS:
18. Learned counsel for HarperCollins, at the outset, would submit
that the Impugned Order is ex facie erroneous and contrary to the
settled principles governing actions for civil defamation.
19. He would submit that an essential element of a claim for
defamation is injury to the reputation of the person complaining of the
alleged defamatory publication. It would be contended that although
the Subject Book was published on 22.12.2020 and remained in
circulation for a considerable period before the institution of the suit,
the plaint does not set out any specific instance demonstrating that the
reputation of Mr. Rana Kapoor, was actually harmed as a consequence
of the publication.
20. Reliance in this regard is placed upon Mahaveer Singhvi v.
11

Hindustan Times Ltd. , and Prof. Imtiaz Ahmad v. Durdana
12
Zamir , to submit that harm to the reputation of the person alleging
defamation is an essential consideration in determining whether a
claim for defamation is made out and that, in the absence of any such
pleading or material, the claim cannot be sustained merely on the basis
of alleged injury to feelings or annoyance.
21. Learned counsel would further submit that the statements

11
2024 SCC OnLine Del 4409
12
2009 SCC OnLine Del 477
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BHATIA
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complained of, at the highest, constitute comment and opinion upon
matters concerning the affairs of Yes Bank and the role of Rana
Kapoor therein, which had already received extensive coverage in the
public domain. The material relied upon in the Subject Book, it would
be submitted, includes articles, reports and judicial orders which were
already available in the public domain, upon which the author has
expressed his opinion.
22. It would also be pointed out that Mr. Rana Kapoor had
identified 22 statements from the Subject Book as being defamatory,
whereas the learned Trial Court considered only 16 of those
statements and found only 3 to be defamatory. Even assuming,
without admitting, that the findings in respect of those 3 statements
were sustainable, learned counsel would submit that there could have
been no justification for restraining the circulation of the entire Book.
13
23. Reliance is placed upon Ashutosh v. Arun Jaitley , in support
of the submission that an injunction in respect of particular offending
statements cannot, without more, justify a restraint upon the
publication of the entire work.
24. Learned counsel would submit that the learned Trial Court has
also failed to appreciate the legal requirements governing a claim
founded upon innuendo.
25. He would submit that where the defamatory meaning is not
apparent from the words themselves and is sought to be derived from
a secondary or extended meaning, the import of such innuendo is
required to be specifically pleaded.
26. It would be submitted that Mr. Rana Kapoor failed to set out the

13
2016 SCC OnLine Del 3587
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alleged secondary meaning or the manner in which the statements
conveyed such meaning and, consequently, could not have been
granted relief on that basis. He would further submit that there was no
prima facie case of defamation in law so as to warrant the grant of an
injunction against publication.
27. Learned counsel would rely upon Bloomberg Television
Production Services India (P) Ltd. v. Zee Entertainment Enterprises
14
Ltd. , to submit that courts ought not ordinarily grant injunctions
against publication except in exceptional circumstances, particularly
where the defence raised by the publisher cannot be said to be bound
to fail at trial.
28. He would contend that, although the learned Trial Court noticed
its reliance upon Bloomberg (supra), it failed to demonstrate how the
statements in question were false, malicious or palpably false, or how
they arose from any personal animosity towards Mr. Rana Kapoor.
29. It would further be submitted that the three-fold test for grant of
an interim injunction, namely, prima facie case, balance of
convenience and irreparable injury, was not satisfied.
30. He would contend that, in the absence of a prima facie case of
defamation, the question of balance of convenience and irreparable
injury could not have been answered in favour of Mr. Rana Kapoor.
31. Learned Counsel for HarperCollins would accordingly pray that
the Impugned Order be set aside.

SUBMISSIONS ON BEHALF OF PAWAN CHAND LALL:
32. Learned senior counsel appearing for Pavan Chand Lall, the
author of the Subject Book, would substantially adopt the submissions

14
2024 SCC OnLine SC 426
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BHATIA
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advanced on behalf of HarperCollins and would submit that the
Impugned Order causes a serious restraint upon his freedom of speech
and expression as an author and journalist.
33. He would submit that the Subject Book was first published on
22.12.2020 and has remained in circulation thereafter, and that the
statements contained therein are based upon material already available
in the public domain and constitute the author‘s comment and opinion
upon matters concerning Yes Bank and Mr. Rana Kapoor.

34. Learned senior counsel would submit that the grant of a pre-trial
injunction against a literary work is an exceptional exercise, since
such restraint operates in substance as a form of prior censorship.
Reliance is again placed upon Bloomberg (supra), to submit that the
Court is required to exercise particular caution before restraining
journalistic or literary expression prior to a full-fledged trial.
35. He would further submit that the question whether the
statements are justified by truth, fair comment or privilege cannot
ordinarily be conclusively determined at the interlocutory stage. In
this regard, reliance is also placed upon Khushwant Singh & Ors. v.
15
Maneka Gandhi and Tata Sons Ltd. v. Greenpeace International &
16
Anr. , to submit that the competing interests of reputation and
freedom of expression are required to be carefully balanced and that
an excessive restraint ought not to be imposed before the defence of
the author has been tested in accordance with law.
36. Learned senior counsel would submit that the fact that the
subject matter of the Subject Book concerns a public figure does not,
by itself, eliminate the protection available to reputation; however,

15
2001 SCC OnLine Del 1030
16
2011 SCC OnLine Del 466
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BHATIA
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equally, the public nature of the subject matter and the availability of
the underlying material in the public domain are relevant
circumstances in assessing whether the extraordinary remedy of an
injunction ought to be granted.
37. He would further submit that the material relied upon by Pavan
Chand Lall was not presented as an entirely new factual narrative
divorced from the existing public record, but was drawn from articles,
reports and judicial proceedings which had already entered the public
domain.
38. Learned senior counsel would also submit that Mr. Rana
Kapoor has not demonstrated any specific instance of injury to his
reputation attributable to the Subject Book, despite the Subject Book
having remained in circulation for a substantial period prior to the
institution of the suit. The delay in seeking restraint, it would be
submitted, is therefore a material circumstance which ought to have
weighed with the learned Trial Court while examining the balance of
convenience and irreparable injury.
39. He would accordingly submit that the Impugned Order does not
satisfy the stringent standard applicable to a pre-trial restraint upon
publication and that the restraint imposed upon the Subject Book is
liable to be set aside.

SUBMISSIONS ON BEHALF OF Mr. RANA KAPOOR:
40. Per contra , learned counsel appearing for Mr. Rana Kapoor
would submit that the present Appeals do not disclose any ground
warranting interference with the Impugned Order, which represents a
reasoned exercise of discretion by the learned Trial Court upon
consideration of the pleadings and material placed before it.
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BHATIA
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41. At the outset, learned counsel would submit that the scope of
appellate interference with an order granting or refusing interlocutory
relief is limited. Reliance is placed upon Ramakant Ambalal Choksi
17
v. Harish Ambala Choksi & Ors. , as well as the principles
governing appellate interference with discretionary orders, to submit
that the Appellants cannot seek a re-appreciation of the material
merely because another view may be possible.
42. He would submit that the learned Trial Court has considered the
pleadings, the statements complained of, and the material relied upon
by the parties and has thereafter applied the settled test of prima facie
case, balance of convenience and irreparable injury. The findings
recorded in the Impugned Order, it would be submitted, are neither
arbitrary nor perverse so as to warrant interference in appellate
jurisdiction.
43. Learned counsel would further submit that the status of Mr.
Rana Kapoor as a public figure does not deprive him of the protection
of his reputation. Reliance is placed upon Swami Ramdev v.
18
Juggernaut Books Pvt. Ltd. , to submit that the right to reputation
continues to receive legal protection even where the person concerned
is a public figure, and that the right to freedom of speech cannot be
treated as an unfettered licence to publish defamatory imputations.
44. He would submit that the Appellants cannot escape liability
merely by contending that similar allegations had previously appeared
in the public domain. It would be contended that the repetition of an
allegedly defamatory imputation does not, by itself, establish its truth.
Reliance is again placed upon Swami Ramdev (supra), to contend that

17
2024 SCC OnLine SC 3538
18
2018 SCC OnLine Del 11549
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BHATIA
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the publisher cannot simply adopt material published elsewhere and
seek immunity on that account.
45. Learned counsel would further controvert the reliance placed
upon Khushwant Singh (supra) and Tata Sons (supra), and would
submit that the principles governing those decisions cannot be applied
mechanically without regard to the nature and character of the
statements complained of in the present case.
46. It would be submitted that the question before the Court is not
merely whether the underlying subject matter was in the public
domain, but whether the particular imputations contained in the
Subject Book were capable of causing injury to the reputation of Mr.
Rana Kapoor.
47. On the question of delay, learned counsel would submit that the
chronology relied upon by the Appellants does not justify denial of
interim protection. He would submit that Mr. Rana Kapoor remained
incarcerated from 08.03.2020 to 19.04.2024 and that he acquired
knowledge of the Subject Book only on 13.01.2022 during the course
of the earlier proceedings instituted against another publisher. The
institution of the present proceedings thereafter, it would be
submitted, cannot be characterised as an unexplained or deliberate
delay.
48. He would further submit that the subsequent delay in
adjudication of the interim application was not attributable to Mr.
Rana Kapoor, but resulted from circumstances such as changes in the
roster and transfer of Judges. The Appellants, therefore, cannot derive
an advantage from the time taken by the Court in adjudicating the
application.
49. Learned counsel would finally submit that the learned Trial
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Court was justified in considering the nature of the statements, the
surrounding circumstances, the pleadings of the parties and the
competing interests of reputation and freedom of expression before
granting the injunction.
50. The Impugned Order, it would be submitted, represents a proper
exercise of judicial discretion, satisfies the requirements under Order
XXXIX Rules 1 and 2 CPC, and does not suffer from any perversity
or arbitrariness warranting interference in the present Appeals.

51. He would, therefore, pray that both the Appeals be dismissed
and the Impugned Order be sustained.
52. No other submissions were advanced on behalf of the Parties.

ANALYSIS:
53. This Court has heard learned counsel for the parties and, with
their able assistance, perused the material on record, including the
Impugned Order.
54. At the outset, it is necessary to delineate the scope of the
jurisdiction exercised by this Court in the present Appeals. The
Impugned Order has been passed by the learned Trial Court in
exercise of its discretion under Order XXXIX Rules 1 and 2 of the
CPC. An order granting or refusing an injunction under the aforesaid
provisions is appealable under Order XLIII of the CPC. The present
proceedings, therefore, constitute an exercise of appellate jurisdiction
against an interlocutory discretionary order.
55. The nature of such jurisdiction, however, is distinct from the
jurisdiction exercised by the Court of first instance while considering
an application for interim injunction. The appellate court is not
required to substitute its own discretion merely because, upon an
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independent consideration of the material, it may be possible to arrive
at another view.
56. The parameters governing appellate interference with an order
granting or refusing interlocutory relief have been authoritatively
settled by the Supreme Court in Wander Ltd. v. Antox India (P)
19
Ltd. .
57. In Wander (supra), the Hon‘ble Supreme Court held that an
appeal against the exercise of discretion in relation to an interlocutory
injunction is an appeal on principle. The appellate court would not
ordinarily interfere with the discretion exercised by the Court of first
instance and substitute its own discretion, unless such discretion is
shown to have been exercised arbitrarily, capriciously or perversely,
or the Court below has ignored the settled principles governing the
grant or refusal of interlocutory injunctions.
58. The Hon‘ble Supreme Court further cautioned that the appellate
court ought not to reassess the material merely with a view to arriving
at a conclusion different from that reached by the Court below, where
the conclusion arrived at is a reasonably possible one on the material
available.
59. The aforesaid principle has subsequently been reiterated by the
Hon‘ble Supreme Court, including in Mohd. Mehtab Khan v.
20
Khushnuma Ibrahim Khan , wherein it was emphasised that the
mere availability of another possible view cannot, by itself, justify
appellate interference with the exercise of discretion under Order
XXXIX CPC.
60. Recently, the aforesaid principles have been considered and

19
1990 SCC OnLine SC 490
20
(2013) 9 SCC 221
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reiterated by the Hon‘ble Supreme Court in Ramakant Ambalal
Choksi (supra) .
61. The Hon‘ble Supreme Court, after considering Wander (supra)
and the subsequent authorities, reiterated that an appellate court, while
exercising jurisdiction under Order XLIII of the CPC, is required to
adjudicate upon the validity of the order granting or declining interim
injunction within the settled contours governing such jurisdiction.
62. The jurisdiction of this Court in the present Appeals must,
therefore, be exercised within the aforesaid parameters. This Court is
not required to determine, at this interlocutory stage, whether the case
of either party would ultimately succeed at trial. The enquiry is
confined to examining whether the learned Trial Court, while granting
the interim injunction, exercised its discretion in accordance with the
settled principles governing such relief and whether the conclusion
arrived at is one which could reasonably have been reached on the
material available before it.
63. At the same time, the aforesaid limitation does not denude this
Court of its appellate jurisdiction. Where the discretion exercised by
the Court below is found to be arbitrary, capricious or perverse, where
relevant considerations have been ignored, or irrelevant considerations
have been taken into account, or where the settled legal principles
governing the grant of interlocutory injunction have not been properly
applied, this Court would be justified in interfering with the Impugned
Order.
64. The question, therefore, is not whether this Court may have
arrived at a different conclusion, but whether the exercise of discretion
by the learned Trial Court falls within the permissible bounds of
appellate review. The relevant findings recorded by the learned Trial
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Court, insofar as they bear upon the issues arising for consideration in
the present Appeals, are extracted hereunder:
―ORDER
Vide this order, I shall decide an application filed under Order 39
Rule 1 & 2 CPC seeking a stay order against defendants. I have
heard arguments on the said application at length from Sh. Naman
Joshi, Ld. Counsel for the plaintiff and Ms. Swathi Sukumar, Ms.
Ashima, Ms. Akanksha Dua, Ms. Yogita Rathore and Sh. Ritik
Raghuwanshi, Ld. Counsel for defendant no.1. Defendant no. 2 to 4
are ex parte. File perused.
2. The present suit was filed for relief of declaration, permanent
and mandatory injunction by claiming that plaintiff is a reputed and
well recognized person in banking sector and he was co-founder of
Yes Bank Ltd. and under his leadership, the Yes Bank saw great
success and robust growth and its capital of INR 200 crores
reached to INR 93,000 crores in 018 and plaintiff also generated
employment opportunities for more than 24,000 people. It is also
claimed that the plaintiff was also awarded various prestigious
awards (list of the same are mentioned in the plaint). It is alleged
that defendant no.1, which is a publishing house and defendant
no.2 who is an author, published a book under the name and title as
“Yes Man: The Untold Story of Rana Kapoor” and the said book
finds mentioned various references/remarks which are defamatory
in nature and violate the fundamental right under Article 21 of the
plaintiff. It is further claimed that the said false allegations may
prejudice the ongoing investigation and the trial against the
plaintiff.
3. In the written statement filed on behalf of the defendant no.1, it
is claimed that under Article 19 of the Constitution of India, the
defendant no.1 has a right to publish an article or a book and there
is no objectionable or defamatory content in the said book against
the said plaintiff. Both the parties relied on various case laws which
are as under:
Cases relied by the plaintiff
(i) „Swami Ramdev v. Juggernaut Books Pvt. Ltd. and Ors.‟
, C.M.(M) No. 556/2018 @ Paras 72, 150, 180, decided by
Hon‘ble High Court of Delhi.
(ii) „Nilesh Navlakha and Ors. v. Union of India, 2021 SCC
OnLine Bom 56‟ Hon‟ble High Court of Bombay;
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(iii)‗ State of Maharashtra v. Rajendra Jawanmal Gandhi,
(1997) 8 SCC 386, R.K. Anand v. Delhi High Court, (2009) 8
SCC 106, and Sidhartha Vashisht @Manu Sharma v. State
(NCT of Delhi), (2010) 6 SCC 1;
(iv) Hon'ble High Court of Bombay in „Mushtaq Moosa
Tarani v. Government of India and Ors., 2005 SCC OnLine
Bom 385 @ Paras 50, 53, 58, 61, 65.

Cases relied by the Defendant no.1.
1.National Stock Exchange of India Vs. Moneywise Media
Pvt. Ltd. & Ors. - 2015 SCC OnLine Born 4790
2.Tata Sons Limited Vs.Greenpeace International & Anr. -
2011 SCC OnLine Del 466
3.Prof. Imtiaz Ahmad Vs. Durdana Zamir, -2009SCC
OnLine Del 477
4. M/s Crop Care Federation of India Vs. Rajasthan
Patrika.C.S. (OS) 531/2005
5.Khushwant Singh Vs. Maneka Gandhi - 2001 SCC
OnLine Del 1030
6.Pushpa Sharma Vs. D.B. Copr. Ltd. and Ors., 2018 SCC
OnLine Del 11537
7.R. Rajagopal Vs. State of T.N.(1994) 6 SCC 632
8. ESSEL Infraprojects Limited and Anr. Vs. Devamdera
Prakash Mishara -2014 (1) AIR BOM R 482
9.Harvest Securities Pvt. Ltd. Vs. BP Singapore Pvt. Ltd.
and Anr.-2014 SCC Online Del 2384
10.Susheel Ansal Vs. Endemol India Pvt. Ltd. -2023 SCC
Online Del 121
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11.Durga Oraon Vs. State of Jharkhand,-2012 SCC OnLine
Jhar 77
12. Navigators Logistics Ltd. v Kashif Qureshi & Ors.,
(2018) 254 DLT 307
13. Elcom Innovation Pvt. Ltd. v Harish Sharma & Ors.,
2022 SCC OnLine Del 1123
14.Sahara India Real Estate Corpn. Ltd. v. SEBI, (2012) 10
SCC 603
15. Industrial Finance Corporation of India v Maharashtra
State Co-Operative, 2016 SCC OnLine Bom 5080
16. M/S Gokaldas Paper Products v M/S Lilliput Kidswear
Ltd. & Anr., CCP (CO.) No. 9 of 2013 Order dated
05.04.2023 passed by the Ho'ble High Court of Delhi
17. Shri Gopal Engg. & Chemical Works v M/s/ POMX
Laboratory, DRJ 1992 (22)
18. B.L. and Co. and Ors. v Pfizer Products Incl.,
2001SCC Online Del: 637
19. S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1.
20. Bloomberg Television Production Services India vs. Zee
Entertainment Enterprises Limited, Special Leave to Appeal
(C ) No. 6696/2024.
Arguments/submissions of the Ld. Counsel for the plaintiff.
4. Ld. Counsel for the plaintiff argued that the present suit was filed
as the Book in question will directly affect the life and profession
of the Plaintiff as well as the ongoing investigations against him.
The Book's contents can cause irreparable harm to the Plaintiff's
reputation, if its further circulation/sale is not stopped. He further
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argued that the plaintiff is seeking mainly the reliefs of (1)
declaratory decree holding the contents of the Book, Interview,
Article 1 and Article 2 as defamatory; (2) a permanent injunction
restraining the sale/distribution/circulation of the Book in question;
(3) a mandatory injunction for recall and destruction of all unsold
copies/inventory of the Book, etc.
5. It is argued that a combined reading of the Book, Articles and
contents of the Interview clearly reveal that the Defendant No.2's
propensity to dubiously analyses the "thoughts" and "psychology"
of the Plaintiff, cast unfounded/baseless aspersions on his business
career and family life. He also submitted that it is a well settled
proposition of law that the right to reputation supersedes the right
to publication. In this regard, he relied on the case of ‗ Nilesh
Navlakha and Ors. v. Union of India, 2021 SCC OnLine Bom 56‟
Bombay High Court where it was held that in cases of conflict
between the right to a free and fair trial and the right to freedom of
speech and expression, the former must be zealously guarded over
the latter.
6. He further argued that assuming without conceding that the
Plaintiff is indeed a "public figure", in that case also this does not
ipso facto give a license to the defendant for defamation of the
plaintiff. In this regard, the Ld. Counsel for the plaintiff relied on
the case of „Swami Ramdev v. Juggernaut Books Pvt. Ltd. and
Ors.‟ , C.M.(M) No. 556/2018 @ Paras 72, 150, 180, decided by
Hon‘ble High Court of Delhi.
7. Referring to a spectrum of decisions on media trials, including
„State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8
SCC 386, R.K. Anand v. Delhi High Court, (2009) 8 SCC 106,
and Sidhartha Vashisht @Manu Sharma v. State (NCT of Delhi),
(2010) 6 SCC 1 , the Ld. Counsel for the plaintiff emphasized that
trial by media should not hamper fair investigation by the
investigating agency and should not prejudice the right of defence
of the accused in any manner as it will amount to a travesty of
justice.
8. The Ld. Counsel for the plaintiff urged that investigation(s) are
still ongoing and various agencies yet to file their chargesheet(s).
The criminal laws of India require that a person's guilt be proved
beyond reasonable doubt and an accused is presumed innocent
unless the contrary is proved in a court of law. Broadcast of
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materials in the mainstream media tends to influence the minds of
the general population, Hon'ble Judges, Ld. Prosecutors and
witnesses who are all human and, therefore, they are not immune to
discussion, debate, and influences, as was held by the Hon'ble High
Court of Bombay in „Mushtaq Moosa Tarani v. Government of
India and Ors., 2005 SCC OnLine Bom 385.
9. It is also asserted that in a similar case, the interim injunction
granted in Karkardooma Court, dealing with a similar book, has
been upheld by the Hon‘ble High Court of Delhi, therefore, present
application also deserves to be allowed.
Submissions/arguments on behalf of the defendant no.1
10. Ld. Counsel for the defendant no.1 relied on the case of „Tata
Sons Limited v. Greenpeace International and Anr., 2011 SCC
OnLine Del 466‟ and argued that the statements complained of, are
not defamatory in the light of publicly available material about the
Plaintiff. The Plaintiff is a public figure and has been covered by
various news articles in relation to the pending criminal
proceedings against him, which are extracted in Annexure A . She
further argued that there is no pleading as to how the Plaintiff's
reputation has been lowered, which is an essential ingredient of the
tort of defamation. There is no averment that any third person had
read the Book which tarnished the image of the Plaintiff. Such a
pleading is a sine qua non for a claim of defamation. In this regard,
she relied on the following observations of decision in Prof. Imitaz
Ahmad v Durdana Zamir, 2009 SCC Online Del 477:
"Where a person alleges that his reputation has been
damaged, it only means he has been lowered in the eyes of
right-thinking persons of the society or his
friends/relatives. It is not enough for a person to sue for
words which merely injure his feeling or cause annoyance
to him. Injury to feeling of a man cannot be made a basis
for claiming of damages on the ground of defamation.
Thus, the words must be such which prejudice a man's
reputation and are so offensive so as to lower a man's
dignity in the eyes of others. Insult in itself is not a cause
of action for damages on the ground of defamation.....It is
not the case that people have abandoned him or boycotted
him because of this imputation. The plaintiff has not
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named a single person who had changed his opinion after
filing of the complaint by the defendant."
11. Therefore, it is submitted that there is no factual basis for the
plaintiff to seek an injunction against the Book in question and the
standard in law for a defamation action can be gleaned from the
following judgments:
i. The statements should be malicious and palpably false
(Pushp Sharma v. D. B. Corp. Ltd. & Ors., 2018 SCC
Online Del 11537);
ii. Even where the publication is based upon facts and
statements which are not true, unless the Plaintiff
establishes that the publication was made by the defendant
with reckless disregard of truth. It has to be shown by the
Plaintiff that the publication is proved to be false and
actuated by malice or out of personal animosity (R.
Rajagopal v. State of Tamil Nadu, 1994 (6) SCC 632,
Paragraphs 26 (3) and 29;);
iii.Exaggerated or hyperbolic speech, in respect of matters
of public concern does not entitle the Plaintiff to seek
injunction in a case of defamation (Tata Sons Limited v.
Greenpeace International & Anr., 2011 SCC OnLine Del
466, Paragraphs 29-36,38-39); and
iv.No injunction can be granted in relation to matters that
fall within the domain of thought provocation and debate
and criticism (Swami Ramdev v Juggernaut Books Pvt.
Ltd. & Ors., 2018 SCC OnLine Del 11549) .

Submission of Defendant no.1 on the point that plaintiff is a
public figure and ought to tolerate criticism
12. The Plaintiff is a public figure who has voluntarily been in the
limelight, including by being the first banker to have hired a PR
agent to manage his public image and has made himself
indistinguishable from Yes Bank Limited. He was in the habit of
issuing press releases, like the one issued on Republic Day in 2016,
personally congratulating the French President for supply of Rafale
Jets (At Page 203 of the Defendant No. 1's documents along with
Written Statement). He has always conducted himself as a public
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figure. The Plaintiff was admittedly at the helm of affairs serving as
founder, chief executive officer and managing director at the bank
named Yes Bank Limited, by virtue of which, the Plaintiff was
holding office of a public institution in which the public at large
has an interest. Therefore, the legal standards in respect of
publication about the Plaintiff's role in the Yes Bank crisis are
different from that of a lay person.
13. The Ld. Counsel for the plaintiff argued that plaintiff is a public
figure and, therefore, following observations should be kept in
mind while deciding the present application:
i. Public gaze cannot be avoided when holding public
office. Where prior publications exist, interlocutory
injunction cannot be granted. Silence in respect of prior
publication amounts to acquiescence or at least lack of
grievances in respect of publication of the material.
Persons holding public office should show greater
tolerance for comments and criticism. For the purpose of
publication, if it is to the interest to the public, it would
suffice. People have a right to hold a particular view and
express freely on the matter of public interest. Khushwant
Singh v. Menaka Gandhi, 2001 SCC Online Del 1030,
Paragraphs 20, 21, 22, 59, 63, 67, 68, 69, 70, 71 and 75;
ii.In case of public officials, it is obvious, right to privacy,
or for that matter, the remedy of action for damages is
simply not available with respect to their acts and conduct
relevant to the discharge of their official duties. The
Defendant has a right to publish its story as it appears
from public records, even without consent or
authorization; R. Rajagopal v State of Tamil Nadu, 1994
(6) SCC 632;
iii. In a case of a public figure instituting a case of
defamation, if the defendant demonstrates that he acted
after reasonable verification of facts, it is sufficient to
dislodge the claim for injunction. If public interest is
involved, defamation action cannot be used to negate or
stifle genuine criticism, even pointed criticism or criticism
that is harshly worded. „National Stock Exchange of
India Limited v Moneywise Media Private Limited &
Ors.‟, 2015 SCC OnLine Bom 4790;
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iv.A Plaintiff who is a public figure will have to show that
the statements were made out of malice. Tata Sons
Limited v Greenpeace International & Anr., 2011 SCC
OnLine Del 466.
14. Ld. Counsel for the defendant no.1 submitted that in March
2020, the Plaintiff was arrested on various criminal charges and
had undergone judicial custody on several charges, including
money laundering and bribery. Further to his arrest, there have
been several publications which named the Plaintiff and
commented against him starting from March 2020. The Defendant
herein has filed several of these publications as part of its list of
documents, the existence of which have been admitted by the
Plaintiff in its affidavit of admission/denial of documents. The
contents of some of the publications have been annexed as
Annexure A.
15. None of the statements in the Book even remotely approach the
kind of statements already made about the Plaintiff in the public
domain, including through several news articles, which constitute
the Plaintiff's public image. A perusal of the extracts of the Book
reproduced in the Plaint, complained to be defamatory, show that
the statements complained of, are not ex facie defamatory, but
rather it is the Plaintiff's case they are in the nature of innuendo.
The Plaintiff has not pleaded what the innuendo is behind the
statements which are allegedly defamatory to the Plaintiff.
16. When it is a case of defamation by innuendo, the pleading
needs to specify what is the import of the innuendo alleged to be
defamatory. Reference may be made in this regard to the case of
„ESSEL Infraprojects Limited & Anr. v Devendra Prakash
Mishra & Ors.‟ , 2014 SCC OnLine Bom 1780 which holds that
the words complained of as being defamatory have to be set out, in
cases where the defamatory sense is not apparent the "innuendo" /
secondary or extended meaning of the same must be set out in clear
terms in the plaint. If the words are reasonably capable of bearing
more than one literal meaning or if the defamatory meaning relied
on is inferential, it is desirable and may even be necessary to plead
the defamatory meaning or meanings. Therefore, in the absence of
pleading on the import of the innuendo, disentitles the plaintiff
from the relief claimed.
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17. All statements from the book complained of in the Plaint are
based on public domain sources and is truth and fair comment.
Every statement alleged to be defamatory in the Plaint has been
justified by the Defendant No. 1 in its written statement either on
the basis of prior publication either as part of judicial record or
public records or on the basis that it is a fair comment. The relevant
portions of the Written Statement are available at Paragraphs 44
(Pages 29 to 51), 50 (Pages 61 to 66), 51 (Pages 66 to 75), 67
(Pages 92 to 94) and 95 (Pages 115 to 118); all at Volume 1. By
publishing the Book, the Defendant No. 1 has not engaged in
sensationalizing this case but is merely conducting an exploration
on how public faith in the Indian banking sector has been
compromised. Regardless of the fact that every statement published
in the Book is justified and justifiable, the Plaintiff has failed to
plead the innuendo, and the effect of the innuendo, behind the
allegedly defamatory statements in the Book.
18. Ld. Counsel for the defendant no.1 urged that a holistic reading
of the Book, beginning with the "Author's Note" and the
"Prologue" on the banking sector, show that the entire exercise in
the Book is that of making a fair comment on the state of affairs in
the banking industry, of which unfortunately Yes Bank, which was
almost exclusively controlled by the Plaintiff has become an
example of how a bank is not supposed to be run. All the prior
publications recognize the Plaintiff's role in the collapse of Yes
Bank, hence it is not possible to speak about the crisis in Yes Bank
without naming the Plaintiff.
Plaintiff's Reliance on the judgment in Swami Ramdev's case
19. The Plaintiff in its arguments has extensively relied on the
judgment in the case of Swami Ramdev v. Juggernaut Books Pvt.
Ltd. & Ors , to canvas that injunction ought to be granted in favor
of the Plaintiff. The Hon'ble Court's finding in the case of Swami
Ramdev (Supra) can be summed up as follows:
i. The statements complained in the case dealt extensively
with the life of Swami Ramdev. (Para 13 to 18 of Swami
Ramdev, at Volume 4)
ii. The Book also contained specific allegations against
Swami Ramdev in regards to the death of Swami
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Yoganand and the disappearance of Shankar Dev. (Para
139 & 148 of Swami Ramdev, at Volume 4)
iii.The Court found that there exists a "closure report" in
the case of death of Swami Yoganand and there also exists
an "untraced report" in the case of Shankar Dev. These
being prior publications which were in existence at the
time of publication of the Book; prima facie the portions
of the Book which are contrary to it cannot be found to be
justifiable and only these portions of the Book were
injuncted. (Para 172,178, 181 of Swami Ramdev, at
Volume 4)
iv.In regards to the other portions of the Book which have
extensively dealt with the life of Swami Ramdev,
complained in the Plaint, the court found that, the same
prima facie falls within the domain of thought provocation
and debate and criticism and the prayers in relation thereto
cannot granted. (Para 182 of Swami Ramdev, at Volume
4).
No real and substantial risk of prejudice being caused to the
right to fair trial of the plaintiff.
20. The Plaintiff's claim that the publication of the Book affects his
right to a fair trial in the criminal proceedings is a bald averment as
the Plaintiff has failed to show real or substantial risk of prejudice
being caused by the publication of the Book. The Plaint has no
pleading on how the publication of the Book has interfered with his
right to a fair trial. It is trite that judges and judicial officers are
specially trained in law, and not to be swayed by published
materials they may come across. In this regard, reliance is placed
on the following judgments:
i.Sahara India Real Estate Corporation Limited v SEBI, 2012 (10)
SCC 603, Paragraphs 46, 47 and 50; at Volume 3:
(With regard to postponement of publication related to ongoing
criminal matters, it has to be shown that the publication interferes
with the administration of justice and that there is a real and
substantial risk of prejudice caused to the Plaintiff by the
publication); and
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ii.Durga Oraon v State of Jharkhand, 2012 SCC OnLine Jhar 77,
Paragraphs 2 and 6; at Volume 6:
(Criminal trials are decided by evidence given in a case and
administration of justice is not influenced by consideration of any
publication).
21. It is to be noted that as late as May 2023, when the Plaintiff was
denied bail in one of the ongoing criminal proceedings against him,
the bail order of the Hon'ble High Court of Bombay reiterated the
charges that have been brought against the Plaintiff, and has been
filed as an additional document by Defendant No. 1 on July 8,
2023. Furthermore, there are several news publications which have
given a wide range of reportage on this bail order, which have been
filed as additional documents by Defendant No. 1 on July 8, 2023
(at Volume 7). The fact that the Plaintiff has not taken any action
against these publications, shows that there is no real and
substantial risk that has been caused to the Plaintiff, so as to
prejudice his right to fair trial. If the Plaintiff was truly aggrieved
by the publicity he has received from these articles, he ought to
have taken action to protect himself and his right to reputation.
Rather he has shown, from his conduct, that no true harm or
hardship has been caused to him, he has acquiesced to the reportage
in this regard and with regard to his alleged involvement in several
high-profile white collar crimes and cannot object to the
publication of the Book at this stage.
Consent of the Plaintiff is not required to publish the Book
22. The plaintiff alleges that no prior consent was obtained by the
defendant in the publication of the book. It is submitted that as laid
down by Hon‘ble Supreme Court in the case of R. Rajagopal v.
State of Tamil Nadu, 1994 (6) SCC 632, the defendant has a right
to publish without the prior consent of the plaintiff. The defendant
had no obligation to approach the plaintiff, as has been contended
by the plaintiff. Without prejudice to the foregoing, the plaintiff
was contacted before the publication of the Book.
Plaintiff's claim of personality rights has no basis
23. While the Plaintiff's claim to personality rights was not argued
during oral arguments, it has been pleaded in passing. However,
personality rights claims arise from the use of a personality as a
trademark on goods or services. It does not have applicability in the
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case of publication of a book about a person. No such cause of
action on how the commercial interest of the Plaintiff's personality
are affected has been pleaded. In the absence of any pleading, no
case has been made out for the grant of reliefs under such a claim.
The first judgment in India to deal with the concept of personality
rights was D.M. Entertainment Pvt. Ltd. v Baby Gift House and
Ors., 2010 SCC OnLine Del 4790; at Volume 11, in which dolls in
the likeness of the famous singer Daler Mehndi were injuncted
from being sold. However, even in those facts, the Hon'ble Delhi
High Court held as under:
"Para 16. The right of publicity can in a jurisprudential
sense. Be located with the individual's right and autonomy
to permit or not permit the commercial exploitation of his
likeness of some attributes of his personality. However, a
word of caution has to be expressed here. In a free and
democratic society, where every individual's right to free
speech is assured. the over emphasis on a famous person's
publicity rights can tend to chill the exercise of such
invaluable democratic right. Thus, for instance, caricature,
lampooning, parodies and the like which may tend to
highlight some aspects of the individuals personality traits,
may not constitute infringement of such individual's right
to publicity. If it were held otherwise an entire genre of
expression would be unavailable to the general public."
(emphasis supplied).
24. Recently, in a case involving personality rights, the Hon'ble
High Court of Delhi in the case of Digital Collectibles Pte Ltd
and Ors. V Galactus Funware Technology Private Limited and
Anr., 2023 SCC OnLine Del 2306 (at Volume 11) has held as
follows:
"Para 127. The extent of right of publicity also has to be
considered in the context of the right to freedom of speech
and expression protected under Article 19(1)(a) of the
Constitution of India. Even if the right of publicity were to
be considered to be an absolute right in India, it still must
be subservient to Article 19(1)(a) of the Constitution of
India. This is exactly what Bhat, J. sought to explain in
paragraph 14 of his judgment in DM.
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Entertainment (supra) and carved out exceptions in the
form of caricature. lampooning, parodies and the like.
Even in the U.S., courts have held the right of publicity to
be subservient to the right of free speech under the First
Amendment. Some of the defences recognized by the U.S.
courts include newsworthiness, cartoons, caricatures,
parodies and other information available in public
domain.
Para 128. In my opinion, use of celebrity names, images for the
purposes of lampooning, satire, parodies, art, scholarship, music,
academics, news and other similar uses would be permissible as
facets of the right of freedom of speech and expression under
Article 19(1)(a) of the Constitution of India and would not fall foul
to the tort of infringement of the right of publicity." (emphasis
supplied)
Plaintiff's claim of right to be forgotten / left alone is not based
on pleadings and is false
25. The Plaintiff in his arguments has made the claim of 'right to be
forgotten/left alone' as a facet of right to privacy and reputation,
although no such right is pleaded in the Plaint. The Plaintiff's
arguments are completely hypothetical that, if Mr. Kapoor is
acquitted, his right to be forgotten would be affected. Such a
speculative or hypothetical situation cannot form the basis of a
claim, and the Plaintiff may approach the Court if and when he is
acquitted.
26. Further, the Supreme Court of India in the case of R. Rajagopal
v State of Tamil Nadu, 1994 (6) SCC 632 at Paragraphs 26 (1) and
(2) (at Volume 6) has held that right to privacy/right to be forgotten
is subject to the exception that any publication becomes
unobjectionable if such publication is based on public records
including court records. Therefore, the right of the Plaintiff to be
forgotten/left alone does not in any manner restrict the Defendant
No. 1's freedom of speech and expression under Article 19 of the
Indian Constitution as the Book is based on publicly available
material and also judicial records, forming an unobjectionable part
of public record.
27. Ld. Counsel for the defendant no.1 argued that the Plaintiff has
failed to make out a prima facie case as the orders sought by the
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Plaintiff are impermissible in law as held by above cited
authorities. Further, on account of acquiescence to prior publication
and the delay in approaching the Hon'ble Court, the balance of
convenience lies in favor of declining injunction as also because
the Plaintiff has not made any pleading on loss of reputation. A
grant of injunction will cause irreparable loss to the valuable right
of the public to know the subject matter and the right of the
publisher i.e. Defendant No. 1 to publish material on the subject
matter.
28. Currently, the Plaintiff stands accused of serious financial
impropriety in his role at Yes Bank. However, even before such
allegations were leveled and the Plaintiff was arrested by the
concerned authorities in the year 2020, the High Court of Bombay
in the case titled Madhu Ashok Kapur & Ors. v. Rana Kapoor &
Ors. dated June 4, 2014 made the following observations:
"Paragraph 13.4. Mr. Khambata says that Rana Kapoor
runs Yes Bank like his personal fiefdom. His word is law.
He bends the company to his will. This seems to me to be
excessive. It calls into question the bona fides and
credentials of every single member of Yes Bank's Board,
and it does not sit well with the undoubted progress that
the company has made in the short years since its
inception. Perhaps it is true that Rana Kapoor has not
been opposed, or, at any rate, there is nothing on record
to indicate any opposition. What of it? Possibly he is so
consummate in his work that no opposition is necessary.
That is not unknown in vibrant organisations often
identified with a single individual. Rana Kapoor's pre-
eminence or dominance in the affairs of Yes Bank does not
per se show illegality or unlawfulness.
Paragraph 13.5. The problem is deeper. Both Rana
Kapoor and Yes Bank have, vis-à-vis the Plaintiffs, chosen
to adopt a course that is unsupported by the Articles or
any fair reading of the relevant statutes. If that be so,
neither can invoke any equity to continue acting in that
vein. The result is an inevitability, and the chips must fall
where they may. There is sufficient space and room for
Yes Bank to correct its course in the time ahead.
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29. Pertinently, these observations were never challenged or
removed from public consumption by the Petitioner and the same
form part of the public record till date. Some of the publications
have made the following comments:
“News article titled, "Greed and Fraud carrying the
picture of the Plaintiff dated March 23, 2020 (At Page 156
of Defendant No. I's documents along with Written
Statement):
News article titled, "Yes Bank founder Rana Kapoor hid
832 cr in wife's company without her knowledge: ED"
dated April 23, 2022 which also states that: "The
supplementary charge sheet, filed earlier this month, also
revealed that RAB Enterprises, fully owned by Rana
Kapoor's wife Bindu, had received funds to the tune of 832
crore" (At Page 168 of Defendant No. 1's documents
along with Written Statement);
News article titled, "Former CEO Ranveet Gill puts the
blame on Rana Kapoor for Yes Bank collapse" dated May
06, 2020 (At Page 173 of Defendant No. 1's documents
along with Written Statement); (emphasis supplied)
News article titled, "Yes Bank Saga: How did it become a
house of bad loans and what's the way ahead" dated July
31, 2020 which states that: "...the addition of non-
performing assets (NPAs) was largely the making of Rana
Kapoor's mismanagement and greed for big money.
Kapoor destroyed the institution he built to please the
unholy corporate nexus. At the end of it, everything
collapsed like a pack of cards. Kapoor's Worli residence,
Samudra Mahal, took up the role of Yes Bank's high value
credit operations centre at one point. Those who were
given bagful of money by Kapoor included DHFL, Anil
Ambani Group, Essel, Vodafone and IL&FS. These firms
topped the chart of stressed borrowers of Yes. In some
cases, Kapoor gave loans to shady promoters merrily in
return of favours. One big example is Yes Bank loans to
Wadhawans..." (At Pages 177 and 178 of Defendant No.
1's documents along with Written Statement); (emphasis
supplied)
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News article titled, "Crisis-Hit Yes Bank's Founder Rana
Kapoor Arrested For Alleged Fraud dated March 08,
2020 which carries a picture of the effect the crisis in Yes
Bank had on the public at large. (At Pages 191 and 192 of
Defendant No. 1's documents along with Written
Statement);
News article titled, "Rana Kapoor, now in custody for a
money laundering case, was once the toast of the country's
high society and banking circles" dated March 15, 2020
which says "Arrogant and ambitious, is how many people
describe Kapoor. He would stop at nothing and have no
qualms about stabbing you in the back if he needed to.
He's done that with many, many people." Says a longtime
associate. "He refuses to acknowledge that it was
irresponsible leading and unethical practices during his
tenure that has brought Yes Bank to the brink. He blames
the current management. It's a testament to Kapoor's
influence that despite his fall from grace, people Mirror
reached out to for comment, declined to do so on record.
(At Pages 194 and 195 of Defendant No. 1's documents
along with Written Statement); (emphasis supplied)
News article titled, "The rise and mighty fall of Rana
Kapoor" dated April 06, 2006 which says the following:
"These put Kapoor - a man with a hugely inflated sense of
self-worth with a buccaneer's attitude to banking at centre
stage with no strategy to take care of ground realities. It
only fed his considerable ego and, as was his wont, saw
him resort to managing affairs creatively on the run. The
many questionable transactions that have come to light
involving Kapoor, his wife Bindu, and their three
daughters Radha, Roshni and Rakhee show up a desperate
individual who tried to game the system, only to get gamed
by wilder beings"; "He started small: The first banker to
hire a PR agent to build up his profile while still at his
BankAm desk; A control-freak, Kapoor would involve
himself in the minutiae of every small credit decision; This
obsession with the media sometimes reached ridiculous
levels. Like when he issued this press release on Republic
Day in 2016: "I would like to extend a warm welcome to
French President Francois Hollande. I am greatly
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encouraged by the agreements signed by our two leaders...
the landmark deal for procuring 36 Rafale Jets will
greatly benefit India's armed forces" (At Pages 201, 202
and 203 of Defendant No. 1's documents along with
Written Statement); (emphasis supplied)
News article titled, "Inside the house that Rana Kapoor
builf dated March 09, 2020 which says: "A familiar Page-
3 fixture in mainline dailes, Kapoor used to reward his
bank's top performers with so- called "Golder Pin
Awards" and host parties for them at home;" and
"Kapoor's flamboyance and penchant for publicity are not
the only reasons behind Yes Bank's flame out. His story
reveals many systemic warning bells were ignored and
papered over. Right from the beginning, the man and the
bank were one. All business decisions at Yes Bank, even
where the bank's board was involved, ultimately hinged on
Kapoor's whims and fancies." (At Pages 209, 210 and 211
of Defendant No. I's documents along with Written
Statement); (emphasis supplied)
News article titled, "Yes Bank CEO Rana Kapoor: The fall
of a high- flier" dated March 18, 2020 (At Page 218 of
Defendant No. 1's documents along with Written
Statement);
News article titled, "Rana Kapoor: No Banker" dated
March 13, 2020 which says: "Kapoor is anything but a
staid banker. He is another flamboyant Delhite clad in
bespoke suits and speaking with more authority than
credibility... A series of loans issued by Yes Bank under
his watch turned to NPAs as borrowers claimed inability
to repay the money and Kapoor allegedly resorted to
money laundering. In the process, he belied public trust by
flouting norms and stuffing cash into his family businesses
through a clutch of companies where his wife Bindu
Kapoor, or his three daughters. Radha Kapoor Khanna,
Rakhee Kapoor Tandon and Roshini Kapoor, were
directors"; "For most of the 16 years that Rana Kapoor
was at the helm of Yes Bank (2003-2019), he reportedly
ruled with an iron fist and used it as his fiefdom, lending
recklessly and, in large part, succeeding in cooking
books"; "Rana Kapoor became the face of the bank as its
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MD and CEO and remained so until irregularities
surfaced and the RBI forced him out on January 31,
2019;" and "A hands-on banker, Kapoor spent time with
the borrower, however small. It was also normal for
Kapoor to fire his relationship managers over a text
message" (At Pages 224, 225, 226, 227 and 228 of
Defendant No. 1's documents along with Written
Statement; (emphasis supplied) and News article titled,
"The life and times of YES Bank's flamboyant and self-
absorbed Rana Kapoor" dated March 17, 2020 (At Page
236 of Defendant No. 1's Written Statement). (emphasis
supplied)”
30. It is contended by Ld. Counsel for the defendant no.1 that a
reading of the above extracts and the news articles show that the
Plaintiff, i.e. Mr. Rana Kapoor, was synonymous, indistinguishable
and inseparable with Yes Bank Limited. In fact, it is still not
possible to speak about Yes Bank without referring to the Plaintiff.
These news articles also show that the Plaintiff was someone who
enjoyed publicity and being present prominently in the public
domain. The collapse and crisis of Yes Bank Limited are
significant as the matter was not just about a singular institution
and/or regulation, but rather, the matter has had a significant impact
on the banking system of the country and, therefore, it is the right
of the public to be informed about it, to comment on it, and to
engage in public debates about the matter. It is trite that the money
available with Yes Bank were public funds and, as such, the
hardships faced by ordinary people are a matter of public interest,
and such debate cannot be stifled by the whims of an individual.
31. The contents of the Book are already in the public domain and
truthful, therefore the publication and circulation of the Book is
neither defamatory nor violative of the right to privacy of the
Plaintiff. In this regard, the following cases are relied upon:
“Khushwant Singh v. Menaka Gandhi, 2001 SCC Online
Del 1030, Paragraphs 20, 21, 22, 63, 67, 68, 69, 70, 71
and 75:
(Public gaze cannot be avoided when holding public
office. Where prior publications exist, interlocutory
injunction cannot be granted. For the purpose of
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publication, if it is to the interest to the public, it would
suffice);
R. Rajagopal v State of Tamil Nadu, 1994 (6) SCC 632,
(In case of public officials, it is obvious, right to privacy,
or for that matter, the remedy of action for damages is
simply not available with respect to their acts and conduct
relevant to the discharge of their official duties. This is so
even where the publication is based upon facts and
statements which are not true, unless the official
establishes that the publication was made (by the
defendant) with reckless disregard for truth. It has to be
shown by the Plaintiff that the publication is proved to be
false and actuated by malice or out of personal animosity.
The Defendant No. 1 has a right to publish its story as it
appears from public records, even without consent or
authorization); and
Pushp Sharma v D. B. Corp. Ltd. & Ors., 2018 SCC
Online Del 11537, Paragraphs 22 and 23:
(Electronic media and internet per se ought not to dilute
valuable right of freedom of speech, even in a case of
defamation the ordinary principles of governing interim
injunctive reliefs apply. It has to be demonstrated at the
threshold that the offending content is malicious or
palpably false for grant of an interim injunction).”
32. The Plaintiff has failed to establish that the Book published by
Defendant No. 1 or the contents of it are, "false and actuated by
malice or out of personal animosity or that the content alleged to be
defamatory is malicious or palpably false," which is the standard
set by various judgments. It is respectfully submitted that the
Plaintiff has failed to demonstrate the same in its pleadings. In light
of the facts enumerated above, it is submitted that the Plaintiff by
way of clever drafting has concocted a cause of action only to file
the case belatedly after obtaining an ex-parte interim order in the
proceedings before the Karkardooma Court in the Karkardooma
Suit. A delayed and fraudulent approach to the court is no ground
for grant of any interim relief, reliance in this regard has been
placed on the following judgments:
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Sushil Ansal v. Endemol India Pvt. Ltd., 2023 SCC OnLine Del
121. Paragraphs 18, 20 and 21:
(It is of great significance that in a case of injunction against a
publication, the time when the Plaintiff first derived knowledge of
the offending material and whether the Plaintiff has approached
the court in good faith is examined. If the Court finds that the
Plaintiff has either failed to initiate action with promptitude or
approached the court at the first available opportunity, that would
be a circumstance which would weigh heavily against the grant of
an ad interim injunction. Further, if the Court were to find that the
material which is likely to be broadcast or published already exists
in the public domain and has existed as such for a considerable
period of time without an objection having been raised, that too
would detract from the right of the Plaintiff to seek ad interim
injunctive relief); and S.P. Chengalvaraya Naidu v Jaganath
(dead) by Lrs, & Ors., 1994 (1) SCC 1, Paragraphs 5 and 6:
Reasons for decision
33. After considering the submission of both sides and the going
through the guiding factors as laid down in the several
precedents/case- laws which are relied by both sides, this court is of
the view that before analysing the factual matrix of the case, we
should understand as to what is the connotation and meaning of the
word ‗defamation‘. In the book of Law of Torts, Salmond &
Heuston, 20th Edition, the word „defamation‟ has been defined as
“A defamatory statement is one which has a tendency to injure
the reputation of the person to whom it refers; which tends,
that is to say, to lower him in the estimation of right-thinking
21
members of society generally and in particular to cause him
to be regarded with feelings of hatred, contempt, ridicule, fear,
dislike, or disesteem.” The statement is judged by the standard of
an ordinary, right-thinking member of society. Hence the test is an
objective one, and it is no defence to say that then statement was
22
not intended to be defamatory, or uttered by way of a joke.
However, no action will lie for the publication of a defamatory
statement, if the defendant pleads and proves that it is true.
34. Ld. counsel for the plaintiff has pointed out the specific
paragraphs/sentences of the book in question to claim that they are

21
Sim v. Stretch (1936) 52 T.L.R. 669, 671, per Lord Atkin.
22
Capital and Counties Bank v. Henty (1882) 7 App. Cas. 741, 772
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grossly libelous and tarnish the goodwill and reputation of the
Plaintiff and that the Defendant No. 2 has knowingly made baseless
and false allegations against Plaintiff to sensationalize and
monetize the Book.
35. This court gave a careful reading not only to the said extracted
contents but to the entire book to understand and appreciate the
said allegations and their impact on the plaintiff. This court also
kept in mind the established position of law as brought on record
by both parties by referring to various precedents on the subject.
36. One thing is clear that a publisher or reporter is within its/his
right to print anything whether defamatory or not, provided same is
based on truth or fair comment or fair criticism. But at the same
time, even if a person is a public figure, he cannot be defamed
based on untrue facts or when the content is palpability false or
malicious. The previous news articles, as relied by the Ld. Counsel
for the defendant no.1 may be available in the public domain in
large number but they are also required to be examined whether
they are based on true facts or not or whether they are actuated by
malice or out of personal animosity or that the content alleged to be
defamatory is malicious or palpably false, which is the standard set
by various judgments. When the defamatory statement is put
forward by way of rumor or report only, it is not sufficient to prove
that the rumor or report really existed but it is necessary to prove
that it was true.
37. Secondly, the facts which are mentioned in the book, without
any previous news article or other source, are required to be
examined on the basis of their face value.
38. Thirdly, based on large number of case-laws cited by both
sides, this court is of the opinion that nobody has a right to defame
a person even if said person is a public figure unless the allegations
are based on true facts or substantial material; consent of the
plaintiff is not required for such publication and even such material
(of the category which are in question) cannot influence the Judges
who decide the cases based on evidence, facts and law and cannot

be terms as media trial.
39. Fourthly, the Ld. Counsel for the defendant no. 1 emphasised
that there is a difference in the publication of a book and a news
article because generally a book does not have wide publication
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like a newspaper and same can be read only by the reader who
purchases it after spending the amount of the book. Therefore, it
will not a defamation in the eyes of general public. On the contrary,
Ld. Counsel for the plaintiff argued that the aforesaid argument is
not correct because even for buying newspaper, subscription
amount is paid. He also strenuously argued that the news articles
are short-lived in the memory of reader whereas a book is a
permanent record and in case the plaintiff is acquitted at the end of
trial of criminal cases, said acquittal order will not come on record
in the said book. In the opinion of this court, a defamatory
statement not based on truth or substantial supporting material, if
accessible to public at large (consisting of a few persons or a huge
mass), whether contained in any news article, book, website or any
other platform, is a breach of the fundamental right under Article
21 of the Constitution of India and it does not make any difference
whether it is published in a news article or a book. Therefore, the
argument of the defendant no.1 is found meritless.
40. Now, this court proceeds to appreciate the extracted content
after taking into consideration the reply of the defendant no.1 and
aforesaid understanding of law as under:
S.L. No. Extracted content of the
Court observation
book
For what shall it profit a man
(i)
if he gains the whole world
and suffers the loss of his
soul? The Bible
This is a general quotation of the
holy Bible, reproduced in the book
and same does not indicate any
reference to the plaintiff. Therefore,
same is not defamatory.
The image of Kapoor wearing
(ii)
a medical mask and being
moved from jail to jail, being
heckled by journalists as he
was escorted by khaki clad
police constables, created an
impression that couldn't be
further removed from the
arrogant, erstwhile tycoon
who had built a top ranked
bank, brick by brick, before
his own actions led it to cave
in and come teeteringly close
to implosion. It was well
known that Kapoor wanted to
The defendant no.1 claimed that this
is based on a website
monecontrol.com.

The content of a website if not based
on truth, same cannot be taken as an
admissible defence of truth.

The words ‗arrogant‘, ‗erstwhile
tycoon‘ are judgmental without any
action or reaction of the plaintiff,
which is derogatory.

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be featured on Page 3. Little
did he know that he would be
plastered all over the front
page of newspapers, and not
for the right reasons.
After high school, he joined
(iii)
The aforesaid observation of the
author with regard to comparison of
two colleges is without any basis or
any report.

Shri Ram College of
Commerce, where he got his
degree in economics. At the
time, the top- ranked colleges
for studying economics were
St Stephen's followed by
Hindu College. Shri Ram
College was not best known
for economics but for
commerce subjects, for which
the qualifying marks were
much higher at around 97 per
cent, as compared to 75 per
cent needed for economics.
Even so, Kapoor's drive for
higher education was evident
as he proceeded to the United
States for an MBA at
Rutgers, a state university in
New Jersey.
(iv)
The word on the street was
Mr. Chopra has been referred in the
said book as he maternal uncle of
plaintiff and the allegation of making
call by Chopra to help Kapoor get a
job is without any basis and directly
imputes allegation on the selection
process of Kapoor by use of
influence. The same is clearly a
defamatory statement.
that Chopra had made calls to
top management-not
uncommon then for getting
friends and family placed at
the Bank of America
(BankAm), where he and his
company had large accounts,
to help Kapoor get a job at
the Barakhamba Road
branch.
Even as a young thirty-
(v)
something banker, he would
hire his own public relations
team by bringing in an
agency to help promote his
image and get noticed, those
who worked with him say.
The observation of the author that
the Kapoor was not someone who
work well within a framework is
direct imputation on the competency
of plaintiff.

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The banking world then was
as it is now, driven by
regulations. governance and
rules. Kapoor, from the get-
go, wasn't someone who
worked well within a
framework like that, recalls a
fellow banker.
As the head of the Delhi
(vi)
The defendant no.1 claimed that this
is based on a website
nationalheraldindia.com.

The content of a website if not based
on truth, same cannot be taken as an
admissible defence of truth.

The words ‗unreasonably sensitive‘
are claimed to be based on hearsay
version of other employee, which is
not a truth nor had any reference of
any action or reaction of the plaintiff
of any specific instance.
The irony of it was this
(vii)
branch, Kapoor's
management style was
described by those who
worked under him as being
unreasonably sensitive to any
event that would make him
look bad.
The defendant no.1 claimed that this
is it is a common knowledge that
IIM and IIT are superior colleges
and were preferred by BankAM.

This may be true that they are the
prestigious institutions but it cannot
be assumed that students of other
colleges or for that matter without
any formal education, cannot
perform well. Take example of great
Mathematician Ramanujan who did
not have any formal education but he
reached to a highest level of
scholarly work.

Moreover, the plaintiff also had an
MBA from a foreign University,
which is indicated in the book.

Defendant no.1 also relied on some
linkedin websites.
Kapoor, who didn't have an
MBA from IIM and which
BankAm had almost set in
stone as a prerequisite to join,
ended up running a branch
where at least four of the top
five guys who were reporting
to him were IIM-ers and
could intellectually run
circles around him.
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The content of a website if not based
on truth, same cannot be taken as an
admissible defence of truth.

The content is defamatory by
underestimating the qualification and
ability of plaintiff.
For Kapoor especially, the

(viii)
In reply, it is stated that this is
factual and a fair comment but
nothing in support has been placed.
Therefore, this is apparently a false
opinion.
pressure must have been
overwhelming given that he
was outclassed in terms of
technical qualifications, and
possibly, inherent ability.
Kapoor would usher them to

(ix)
Defendant no.1 claimed that this is
based on feedback from former
colleagues and senior bankers.

This is hearsay and vague version
which is not admissible under law.
There was the buzz that he
(x)
was organizing credit
approvals for clients without
managerial sanction.
Documents were being issued
without being signed and all
the protocols being followed
The expense spending on
bank accounts were also
usually high. And then came
the final straw.
managers who were expected
to 'help them out', which was
not how the game worked at
BankAm.
Defendant no.1 claimed that this is
based on feedback from former
colleagues and

senior bankers.

This is hearsay and vague version
which is not
admissible under law.

The defendant also clamed that this
was buttressed by CBI and ED in
court. Therefore, the content is not
based on truth but it was only an
argument and thus defamatory unless
proved in court.
He went and issued
(xi)
commitment letters in
funding for half a dozen large
corporate houses for an
aggregate amount of a couple
billion dollars. One of them
was Reliance Industries
(RIL). Not that RIL wasn't
able to qualify for the funds
but Kapoor, in a rush to
Defendant no.1 claimed that this is a
matter of corporate istory and fact as
per colleagues.

No extract of history has been placed
on record. The version of colleague
is hearsay and vague which is not
admissible under law.

Doing of fast work is appreciable but
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impress the promoters and
win kudos for himself, would
have said that he could do
things faster than the bank
would have let him.
attaching a purpose to win kudos is
not a fair comment.
The rumour was that Varun
(xii)
Defendant no.1 claimed that this is a
matter of corporate history and fact
as per Colleagues.

No extract of history has been placed
on record. The version of colleague
is hearsay and vague which is not
admissible under law.
Batra, who worked with
Kapoor at Grindlays and
wanted to leav, was told by
Kapoor that he would not be
given his regular notice
period and exit terms. He
would have to leave the very
next day.
Media reports would later

(xiii)
Defendant no.1 cited some bail
order. Therefore, this cannot be said
to be defamatory though the truth
part is matter of trial.
According to media reports,
(xiv)
allege that she even
negotiated kickbacks for
Kapoor.
Defendant no.1 cited some bail
order. Therefore, this cannot be said
to be defamatory though the truth
part is matter of trial

when the loan was made to
Thapar's company, Avantha
Group already owed Yes
Bank 1,333 crore but had
gotten credit of another 2,500
crore. By normal banking
standards and credit checks,
Avantha should not have
been eligible for further loans
but that's why the company
had to come to Yes Bank in
the first place.
Thapar's house fit the bill,
(xv)
Defendant no.1 claimed prior
publication of this content on some
websites. But there is nothing to
support that the said allegations were
based on truth or only assumptions.
Unless the matter under was
investigation and chargesheets were
filed against plaintiff and his wife for
alleged irregularity, the defendant
no.1 was not within its right to
publish such allegations.
regardless of cost According
to those familiar with the real
estate business in Delhi, the
deal was all but done with
Thapar and Bhatia even
having shaken hands on the
transaction. Then Kapoor got
a whiff of the impending deal
and decided that he wanted
first dibs. According to
official documents, a
company applied for a no
objection certificate (NOC)
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from Yes Bank to buy the
house for ₹375 crore. It was
also given on the condition
that the full loan would be
paid Then, in August of 2017,
that offer was withdrawn and
a new offer entered the fray
Bliss Abode, a Yes Bank -
related (and predictably
named) company was being
used for the purpose of
buying fancy homes, in
which Kapoor's wife was a
director Bliss Abode would
put 378 crore on the table to
buy Thapar's house. It was
swiftly approved by a
management credit
committee headed by none
other than Kapoor himself
and was followed by an NOC
that was granted as swiftly.
Once it bought the house,
Bliss Abode entered into a
mortgage arrangement with
one of Yes Bank's borrowers
Indiabulls Housing Finance
for a loan worth 685 crore
that was realized in two
tranches of 285 crore and₹90
crore and another 310 crore -
loan to companies Imagine
Estate and Imagine Home,
also companies in which
Kapoor's wife was a director.
But Kapoor's Roman – style
expansion plans of a
burgeoning real estate empire
across the Indian metros
would hit a pothole.
Kapoor was asking everyone
(xvi)
The defendant no.1 replied that it
was based on a what‘s app chat with
Mr. Suhel Seth.

If said witness appears and deposes
he met for tips and
recommendations on where
to dine. Seth recommended a
Chinese restaurant called
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Golden Dragon. The next day
when he met
him at the convention centre,
Seth says Kapoor
emphatically made it a point
to tell him that he had booked
the entire restaurant when he
went there the day before. It
was almost as if he was
making a point about how he
could afford anything.
so, then it may not be defamatory but
till the conclusion of trial, it is not
sure whether it is a truth or not.


41. From the aforesaid assessment of contents, this court is of the
considered opinion that plaintiff established a prima facie case in
his favour against the defendants for harming his reputation
without completely based on true facts. The balance of convenience
will also lie in favour of the plaintiff because, the reputation of the
plaintiff once defamed in the eyes of reader of the book, it cannot
be reversed back, if the plaintiff finally succeeds in the present case
whereas the defendant will have only monetary loss only which is
not greater than the reputation of the plaintiff because there is a
general saying that ―It takes long years to build a reputation for a
person/institution but it just takes a moment to spoil it‖.
42. In view of aforesaid discussion, the application under Order 39
Rule 1 and 2 CPC is allowed with following directions:
A. Defendants and/or their associates, affiliates, servants,
agents, directors, partners, employees, representatives, and
all other persons acting for and on their behalf are
restrained from selling and/or distributing and/or
circulating the Book titled as "Yes Man: The Untold Story
of Rana Kapoor" authored by the Defendant No. 2, in any
manner whatsoever during the pendency of the Suit.
B. The Defendants and/or their associates, affiliates,
servants, agents, directors, partners, employees,
representatives and all other persons acting for and on
their behalf are further restrained from authoring, making,
publishing, republishing, circulating and/or
communicating to the public in any manner whatsoever
any defamatory / libelous statements and/or slanderous
statements against the Plaintiff by way of the Interview
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titled as "Yes Bank co- founder Rana Kapoor was
extremely ambitious, didn't hesitate to take shortcuts"
during pendency of the present suit.
C. The Defendants and/or their associates, affiliates,
servants, agents, directors, partners, employees,
representatives and all other persons acting for and on
their behalf are restrained from authoring, making,
publishing, republishing, circulating and / or
communicating to the public in any manner whatsoever
any defamatory / libelous statements and / or slanderous
statements against the Plaintiff by way of the Article - I
titled "No real clue What Rana Kapoor told me when I
asked him why Yes Bank failed" dated 12.01.2021 during
pendency of the present suit (https://theprint.in/ kapoor-
told-me-when-i-asked-him-why- yes-bank-
fauked/583860/) and the Article - II titled "Yes Man-New
book maps Yes Bank's rise and fall through the story of
Rana Kapoor" dated 26.01.2021 during the pendency of
the present Suit (https://theprint.in/ rise-and-fall-through-
the-story-of-rana-kapoor/592432/);
D. The Defendants are directed to remove the Article-I,
Article - II, and the Interview during the pendency of the
Suit from their website and respective YouTube channels.
43. Put up for further proceeding on 11.09.2024. Copy of order be
given dasti to the defendant no.1 only.‖
65. A perusal of the Impugned Order reveals that the learned Trial
Court, after noticing the rival submissions of the parties, namely , Mr.
Rana Kapoor and the Appellant, HarperCollins, proceeded to examine
the statements/extracts from the Subject Book which had been
specifically complained of by Mr. Rana Kapoor. It is relevant to note
that the Appellant, Pawan Chand Lall, had been proceeded ex parte
before the learned Trial Court.
66. The learned Trial Court, however, did not find each of the
statements relied upon by Mr. Rana Kapoor to be defamatory. In fact,
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upon its examination of the material, the learned Trial Court identified
Statements (iv), (vii) and (x), extracted at paragraph no. 40 of the
Impugned Order, as being defamatory, while Statement (ii) was found
to be derogatory, and the remaining statements complained of by Mr.
Rana Kapoor were not found to warrant such a conclusion.
67. Simultaneously, the learned Trial Court proceeded to restrain
the Appellants from publishing, circulating or distributing the Subject
Book in its entirety. Thus, while the examination undertaken in the
Impugned Order was confined to the particular statements which were
the subject matter of the grievance raised by Mr. Rana Kapoor, the
operative direction travelled beyond those statements and extended to
the Subject Book as a whole.
68. The Impugned Order further proceeds on the premise that the
fact that certain material forming the basis of the statements was
available in the public domain would not, by itself, absolve the
Appellants of liability, and that the underlying material would still
require examination as to its truthfulness and the circumstances in
which it came to be published.
69. The learned Trial Court also examined the question of whether
the statements complained of could be regarded as defamatory, while
simultaneously taking into consideration the fact that Mr. Rana
Kapoor was a public figure.
70. It is also discernible from the Impugned Order that the learned
Trial Court was conscious of the fact that the Subject Book had
already been published and was in circulation. Nevertheless, while
considering the balance of convenience and irreparable injury, the
learned Trial Court proceeded on the basis that injury to reputation,
once caused, may not be capable of being adequately reversed, and
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consequently considered the balance of convenience to lie in favour of
Mr. Rana Kapoor.
71. Significantly, the learned Trial Court did not find that the
publication of the Subject Book would prejudice or otherwise affect
the criminal proceedings pending against Mr. Rana Kapoor. To that
extent, the learned Trial Court returned a finding in favour of the
Appellants.
72. The aforesaid aspects of the Impugned Order would therefore
have to be examined in the context of the settled principles governing
pre-trial injunctions in actions concerning alleged defamation,
particularly where the publication sought to be restrained is a literary
work which has already been published and circulated for a
considerable period of time. In this regard, the principles governing
the grant of pre-trial injunctions in matters concerning publication, as
elucidated by the Hon‘ble Supreme Court in Bloomberg (supra),
assume particular relevance. The relevant portion of the said judgment
is reproduced hereinbelow:
“4. The threefold test of establishing : ( i ) a prima facie case, ( ii )
balance of convenience, and ( iii ) irreparable loss or harm, for the
grant of interim relief, is well-established in the jurisprudence of
this Court. This test is equally applicable to the grant of interim
injunctions in defamation suits. However, this threefold test must
not be applied mechanically [ DDA v. Skipper Construction Co. (P)
Ltd. , (1996) 4 SCC 622, para 38 : (1997) 89 Comp Cas 362.] , to
the detriment of the other party and in the case of injunctions
against journalistic pieces, often to the detriment of the public.
While granting interim relief, the court must provide detailed
reasons and analyse how the threefold test is satisfied. A cursory
reproduction of the submissions and precedents before the court is
not sufficient. The court must explain how the test is satisfied and
how the precedents cited apply to the facts of the case.
5. In addition to this oft-repeated test, there are also additional
factors, which must weigh with courts while granting an ex parte ad
interim injunction. Some of these factors were elucidated by a
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three-Judge Bench of this Court in Morgan Stanley Mutual Fund v.
Kartick Das [ Morgan Stanley Mutual Fund v. Kartick Das , (1994)
4 SCC 225 : (1994) 81 Comp Cas 318] , in the following terms :
(SCC pp. 241-42, para 36)
― 36 . As a principle, ex parte injunction could be granted
only under exceptional circumstances. The factors which
should weigh with the court in the grant of ex parte
injunction are—
( a ) whether irreparable or serious mischief will ensue to
the plaintiff;
( b ) whether the refusal of ex parte injunction would
involve greater injustice than the grant of it would involve;
( c ) the court will also consider the time at which the
plaintiff first had notice of the act complained so that the
making of improper order against a party in his absence is
prevented;
( d ) the court will consider whether the plaintiff had
acquiesced for some time and in such circumstances it will
not grant ex parte injunction;
( e ) the court would expect a party applying for ex parte
injunction to show utmost good faith in making the
application.
( f ) even if granted, the ex parte injunction would be for a
limited period of time.
( g ) General principles like prima facie case, balance of
convenience and irreparable loss would also be considered
by the court.‖
6. Significantly, in suits concerning defamation by media platforms
and/or journalists, an additional consideration of balancing the
fundamental right to free speech with the right to reputation and
privacy must be borne in mind [ R. Rajagopal v. State of T.N. ,
(1994) 6 SCC 632] . The constitutional mandate of protecting
journalistic expression cannot be understated, and courts must tread
cautiously while granting pre-trial interim injunctions. The standard
to be followed may be borrowed from the decision in Bonnard v.
Perryman [ Bonnard v. Perryman , (1891) 2 Ch 269 (CA)] . This
standard, christened the ―Bonnard standard‖, laid down by the
Court of Appeal (England and Wales), has acquired the status of a
common law principle for the grant of interim injunctions in
defamation suits [ Holley v. Smyth , 1998 QB 726 (CA)] . The Court
of Appeal in Bonnard [ Bonnard v. Perryman , (1891) 2 Ch 269
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(CA)] held as follows : (Ch p. 284)
―… But it is obvious that the subject-matter of an action
for defamation is so special as to require exceptional
caution in exercising the jurisdiction to interfere by
injunction before the trial of an action to prevent an
anticipated wrong . The right of free speech is one which it
is for the public interest that individuals should possess,
and, indeed, that they should exercise without impediment,
so long as no wrongful act is done; and, unless an alleged
libel is untrue, there is no wrong committed; but, on the
contrary, often a very wholesome act is performed in the
publication and repetition of an alleged libel. Until it is
clear that an alleged libel is untrue, it is not clear that any
right at all has been infringed; and the importance of
leaving free speech unfettered is a strong reason in cases
of libel for dealing most cautiously and warily with the
granting of interim injunctions .‖
(emphasis supplied)
7. In Fraser v. Evans [ Fraser v. Evans , (1969) 1 QB 349 : (1968) 3
WLR 1172 (CA)] , the Court of Appeal followed the Bonnard
principle and held as follows : (QB p. 360)
―… insofar as the article will be defamatory of Mr Fraser,
it is clear he cannot get an injunction. The Court will not
restrain the publication of an article, even though it is
defamatory, when the defendant says he intends to justify
it or to make fair comment on a matter of public interest .
That has been established for many years ever since
( Bonnard v. Perryman [ Bonnard v. Perryman , (1891) 2
Ch 269 (CA)] ). The reason some times given is that the
defences of justification and fair comment are for the jury,
which is the constitutional tribunal, and not for a Judge.
But a better reason is the importance in the public interest
that the truth should out . …‖
(emphasis supplied)
8. In essence, the grant of a pre-trial injunction against the
publication of an article may have severe ramifications on the right
to freedom of speech of the author and the public's right to know.
An injunction, particularly ex parte, should not be granted without
establishing that the content sought to be restricted is ―malicious‖
or ―palpably false‖. Granting interim injunctions, before the trial
commences, in a cavalier manner results in the stifling of public
debate. In other words, courts should not grant ex parte injunctions
except in exceptional cases where the defence advanced by the
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respondent would undoubtedly fail at trial. In all other cases,
injunctions against the publication of material should be granted
only after a full-fledged trial is conducted or in exceptional cases,
after the respondent is given a chance to make their submissions.‖
73. It would also be necessary to examine whether the learned Trial
Court, while exercising its discretion under Order XXXIX Rules 1 and
2 of the CPC, correctly applied the principles governing the three-fold
test of prima facie case, balance of convenience and irreparable injury,
as also the heightened degree of caution applicable where the
injunction has the effect of restricting publication or circulation.
74. In the present case, it is significant that Mr. Rana Kapoor has
not assailed the findings of the learned Trial Court insofar as the other
statements complained of by him were concerned. The findings
returned by the learned Trial Court in respect of those statements
have, therefore, not been called into question in the present Appeals.
75. The controversy before this Court, insofar as the contents of the
Subject Book are concerned, consequently stands narrowed down to
the four statements, namely , Statements (ii), (iv), (vii) and (x), which
alone require consideration in the present Appeals, Statements (iv),
(vii) and (x) having been found to be defamatory and Statement (ii)
having been found to be derogatory.
76. It is in this context that the rival submissions of the parties
require consideration. The Appellants have principally contended that
the learned Trial Court failed to appreciate the settled principles
governing pre-trial injunctions in matters concerning alleged
defamation, particularly where the publication sought to be restrained
is a literary work.
77. Reliance has been placed, inter alia , on Bloomberg Television
Production Services India (P) Ltd. (supra), as also on Khushwant
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Singh (supra), Tata Sons Ltd. (supra), Ashutosh (supra) and other
decisions by the Appellants.
78. The submission of the Appellants, in substance, is that an
injunction at the interlocutory stage, particularly against publication,
constitutes a serious restraint upon freedom of speech and expression
and, therefore, requires a heightened degree of caution. It is also their
submission that the statements complained of are based, at least in
part, upon material available in the public domain and constitute an
exercise of fair comment by the author.
79. The Appellants have further contended that the Subject Book
had already been published and circulated for a considerable period
prior to the institution of the proceedings and that the absence of any
demonstrated instance of loss of reputation during such period
materially affects the question of balance of convenience and
irreparable injury.
80. These submissions, in the considered view of this Court, merit
consideration. At the same time, the mere fact that the publication is a
literary work, or that the statements contained therein concern a public
figure, does not, by itself, place the publication beyond the reach of
the ordinary principles governing the protection of reputation. The
right to freedom of speech and expression, though fundamental, is not
unqualified, and the protection of reputation constitutes an equally
relevant consideration.
81. The enquiry before this Court is, therefore, not whether the
Subject Book, as a literary work, is entitled to protection in the
abstract, but whether, having regard to the specific statements found
by the learned Trial Court to be prima facie defamatory, the
requirements for grant of interlocutory relief stand satisfied and, if so,
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the extent to which such relief ought to operate.
82. For ease of reference, the four statements identified by the
learned Trial Court, the findings returned thereon in the Impugned
Order, and the view taken by this Court upon consideration thereof,
are set out hereunder:

TRIAL COURT
FINDINGS

THIS COURT‘S
FINDINGS
STATEMENTS
S.
No.
The defendant no.1
claimed that this is
based on a website
monecontrol.com.

The content of a
website if not
based on truth,
same cannot be
taken as an
admissible defence
of truth.

The words
‗arrogant‘,
‗erstwhile tycoon‘
are judgmental
without any action
or reaction of the
plaintiff, which is
derogatory.
The reference to Mr.
Kapoor as an ―arrogant,
erstwhile tycoon‖, when
read in conjunction with
the further assertion that
―his own actions led it to
cave in and come
teeteringly close to
implosion‖, goes beyond
a mere narration of facts
or a fair comment upon
matters in the public
domain. The expression
―arrogant‖ is, in the
context in which it has
been employed, a direct
characterisation of the
personality of Mr.
Kapoor, while the
attribution of the collapse
of the institution to his
―own actions‖ conveys a
specific and adverse
inference as to his
conduct and
responsibility.

The reliance placed by
the Appellant on the
material available on
Moneycontrol.com , by
itself, cannot justify the
(ii) The image of Kapoor
wearing a medical
mask and being
moved from jail to
jail, being heckled by
journalists as he was
escorted by khaki clad
police constables,
created an impression
that couldn't be
further removed from
the arrogant, erstwhile
tycoon who had built
a top ranked bank,
brick by brick, before
his own actions led it
to cave in and come
teeteringly close to
implosion. It was well
known that Kapoor
wanted to be featured
on Page 3. Little did
he know that he
would be plastered all
over the front page of
newspapers, and not
for the right reasons.

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manner in which the
aforesaid characterisation
has been made. The
question at this stage is
not merely whether an
image or certain factual
material had appeared in
the public domain, but
whether the additional
characterisation and
inference sought to be
conveyed by the author
can, at this interlocutory
stage, be treated as
protected comment. The
passage, when read as a
whole, conveys an
impression which is
capable of lowering the
reputation of Mr. Kapoor
in the estimation of a
reasonable reader.

This Court finds no
infirmity in the
conclusion of the learned
Trial Court that the
aforesaid passage is
capable of conveying an
adverse and derogatory
impression. However, the
Trial Court having
characterised the
statement as derogatory,
and not defamatory, the
same does not
independently sustain a
finding of prima facie
defamation. Since the
said passage has been
held to be derogatory,
and the final
determination of its
character is vested in the
learned Trial Court, its
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publication is to be kept
in abeyance till such
determination, as
recorded hereinafter
(iv) The word on the street
was that Chopra had
made calls to top
management-not
uncommon then for
getting friends and
family placed at the
Bank of America
(BankAm), where he
and his company had
large accounts, to help
Kapoor get a job at
the Barakhamba Road
branch.
Mr. Chopra has
been referred in the
said book as he
maternal uncle of
plaintiff and the
allegation of
making call by
Chopra to help
Kapoor get a job is
without any basis
and directly
imputes allegation
on the selection
process of Kapoor
by use of influence.
The same is clearly
a defamatory
statement.
The statement does not
merely narrate a
historical circumstance
but imputes the use of
personal influence in
relation to the
employment of Mr.
Kapoor, thereby casting
an adverse reflection
upon the manner in
which such employment
was allegedly secured.
The expression ―the word
on the street was‖ does
not, by itself, dilute the
nature of the imputation.
The allegation remains
one which is capable of
being understood by a
reasonable reader as
suggesting that Mr.
Chopra had intervened
with the management of
the Bank to secure the
employment of Mr.
Kapoor on account of
their familial
relationship. In the
absence of any material,
at this stage,
demonstrating the factual
basis for such an
allegation, the statement
cannot be treated merely
as a fair comment or an
expression of opinion.
This Court, therefore,
finds no infirmity in the
conclusion of the learned
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Trial Court that the
aforesaid statement is
prima facie defamatory.
The defendant no.1
claimed that this is
it is a common
knowledge that
IIM and IIT are
superior colleges
and were preferred
by BankAM.

This may be true
that they are the
prestigious
institutions but it
cannot be assumed
that students of
other colleges or
for that matter
without any formal
education, cannot
perform well. Take
example of great
Mathematician
Ramanujan who
did not have any
formal education
but he reached to a
highest level of
scholarly work.

Moreover, the
plaintiff also had
an MBA from a
foreign University,
which is indicated
in the book.

Defendant no.1
also relied on some
linkedin websites.

The content of a
website if not
The statement does not
merely make a
comparison between the
educational qualifications
of Mr. Kapoor and those
of the persons working
under him, but proceeds
further to suggest that,
notwithstanding his lack
of an MBA from an IIM,
he was placed in a
position where persons
possessing such
qualifications were
reporting to him and
were intellectually
superior to him. The
expression that such
persons ―could
intellectually run circles
around him‖ is plainly a
comment upon the
intellectual ability and
professional competence
of Mr. Kapoor and, when
read in the context of the
statement as a whole, is
capable of lowering him
in the estimation of a
reasonable reader.

The submission that IIMs
are prestigious
institutions, and that the
preference allegedly
accorded to candidates
from such institutions by
BankAm was common
knowledge, does not, by
itself, justify the further
inference sought to be
conveyed regarding the
(vii) The irony of it was
this Kapoor, who
didn't have an MBA
from IIM and which
BankAm had almost
set in stone as a
prerequisite to join,
ended up running a
branch where at least
four of the top five
guys who were
reporting to him were
IIM-ers and could
intellectually run
circles around him.
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based on truth,
same cannot be
taken as an
admissible defence

of truth.

intellectual ability or
professional competence
of Mr. Kapoor. The fact
that persons reporting to
him may have possessed
qualifications from such
institutions cannot,
without more, lead to the
conclusion that they were
intellectually superior to
him or that they could
―run circles around him‖.

The reliance placed on
material available on
LinkedIn also cannot, by
itself, constitute a
defence to the aforesaid
characterisation. The
relevant consideration at
this stage is whether the
statement, as published,
conveys an adverse
imputation concerning
the abilities and
competence of Mr.
Kapoor. In the present
case, the statement
travels beyond a mere
factual comparison of
educational qualifications
and conveys a derogatory
assessment of his
intellectual capacity.

This Court, therefore,
finds no infirmity in the
conclusion of the learned
Trial Court that the
aforesaid statement is
prima facie defamatory.

The content is
defamatory by
underestimating the
qualification and
ability of plaintiff.
Defendant no.1
claimed that this is
based on feedback
The statement attributes
to Mr. Kapoor conduct
concerning the
(x) There was the buzz
that he was organizing
credit approvals for
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clients without
managerial sanction.
Documents were
being issued without
being signed and all
the protocols being
followed The expense
spending on bank
accounts were also
usually high. And
then came the final
straw.
from former
colleagues and
senior bankers.

This is hearsay and
vague version
which is not
admissible under
law.

functioning of the Bank,
namely, allegedly
organising credit
approvals without
managerial sanction,
issuance of documents
without signatures and
non-compliance with
prescribed protocols,
apart from unusually
high expenditure on bank
accounts. These are not
mere expressions of
opinion or generalised
criticism, but specific
imputations concerning
the manner in which Mr.
Kapoor is alleged to have
discharged his
professional
responsibilities.

The submission that the
statement was based
upon feedback received
from former colleagues
and senior bankers does
not, at this stage, by itself
establish the truth of the
allegations contained
therein.

The expression ―there
was the buzz‖ also does
not alter the nature of the
imputation conveyed to
the reader. What is
relevant is the substance
of the allegation
communicated, which
attributes specific acts of
impropriety and
disregard of established
banking protocols to Mr.
Kapoor.
The defendant also
clamed that this
was buttressed by
CBI and ED in
court. Therefore,
the content is not
based on truth but
it was only an
argument and thus
defamatory unless
proved in court.
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The further reliance
placed upon proceedings
before the CBI and ED
cannot, at the
interlocutory stage, by
itself establish the truth
of the specific allegations
contained in the passage.
The mere fact that
allegations may have
been raised or
contentions advanced in
proceedings before
investigative or judicial
authorities cannot,
without examination of
the underlying material
and their ultimate
veracity, constitute proof
of the truth of the
specific imputations
made in the Subject
Book.

This Court, therefore,
finds no infirmity in the
conclusion of the learned
Trial Court that the
aforesaid statement is
prima facie defamatory,
particularly since the
statement attributes
specific acts of
professional impropriety
and non-compliance with
banking protocols to Mr.
Kapoor.


83. The aforesaid statements having been extracted hereinabove,
and the findings returned by the learned Trial Court in respect thereof
having been noticed, this Court has independently considered the
nature and tenor of each of the four statements, as also the context in
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which the same occur in the Subject Book. The exercise at this stage is
necessarily confined to determining whether the view taken by the
learned Trial Court that the said statements are capable of being
regarded as prima facie defamatory, calls for interference within the
limited parameters governing an appeal against an interlocutory
discretionary order.
84. In this regard, this Court is conscious that the statements cannot
be examined in isolation from the context in which they occur in the
Subject Book. At the same time, where a particular passage contains
an imputation concerning the character, conduct, professional ability
or reputation of an identifiable individual, the fact that such passage
forms part of a larger literary work would not, by itself, take the same
outside the scope of consideration in a claim founded on defamation.
85. Having undertaken the aforesaid exercise, this Court is not
persuaded to take a view different from that taken by the learned Trial
Court in respect of Statements (ii), (iv), (vii) and (x). Insofar as
Statements (iv), (vii) and (x) are concerned, the nature of the
expressions employed and the imputations conveyed thereby are such
that, at this interlocutory stage, the conclusion that the said statements
are capable of adversely affecting the reputation of Mr. Rana Kapoor
cannot be said to be arbitrary, capricious or perverse. To the extent
Statement (ii) is concerned, this Court finds no reason to interfere with
the characterization accorded to the same by the learned Trial Court as
derogatory. The aforesaid findings, therefore, do not warrant
interference within the limited appellate jurisdiction available to this
Court.
86. It is noted that the Appellants have placed primary reliance
upon Bloomberg (supra), to contend that a pre-trial injunction ought
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not to be granted where the defence raised by the defendant cannot be
said to be bound to fail at trial. This Court agrees that Bloomberg
(supra) correctly lays down the general principle that Courts ought to
exercise caution in granting pre-trial injunctions against publication,
particularly where the defence raised by the defendant is genuine and
requires adjudication at trial.
87. Applying this principle to the present case, the Appellants have
sought to justify Statements (ii), (iv), (vii) and (x) on the basis that the
underlying material was available in the public domain and that the
statements constitute fair comment. This Court has independently
considered the aforesaid statements and, at this interlocutory stage, is
not persuaded that the defence of justification or fair comment, in
respect of these specific statements, is so clearly established as to
render the claim of Mr. Rana Kapoor bound to fail at trial. The
existence of material in the public domain, by itself, cannot conclude
the question of whether the particular imputations conveyed in the
Subject Book are justified or protected as fair comment. Those
questions necessarily remain open for determination at trial.
88. The principle enunciated in Bloomberg (supra), therefore, does
not, in the facts of the present case, warrant interference with the
finding of a prima facie case insofar as the aforesaid statements are
concerned. The question as to whether the material relied upon by the
Appellants ultimately establishes justification, truth or fair comment
remains a matter for adjudication at trial.
89. This Court has also considered the contention of HarperCollins
that Mr. Rana Kapoor has failed to plead the innuendo, i.e., the
secondary or extended meaning of the statements alleged to be
defamatory by innuendo. The principle that, where a defamatory
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meaning is not apparent from the words themselves, the innuendo and
its import must be specifically pleaded, is well-established.
90. However, the aforesaid principle would apply where the
statement is sought to be regarded as defamatory only by reason of a
secondary meaning which is not apparent from its natural and ordinary
reading. Where the imputation is capable of being understood as
defamatory in its natural and ordinary meaning, the requirement of
specifically pleading innuendo would not arise.

91. This Court, having independently examined Statements (iv),
(vii) and (x), which were held by the learned Trial Court to be
defamatory, as also Statement (ii), which was held to be derogatory, is
satisfied that the learned Trial Court has proceeded on the basis of the
meaning conveyed by the statements in their natural and ordinary
sense. Consequently, the absence of a specific pleading of innuendo
cannot, in the facts of the present case, constitute a complete answer to
the claim in respect of the aforesaid statements.
92. It is, however, necessary to emphasise that the aforesaid
conclusion is only with respect to the existence of a prima facie case.
The Court is not, at this stage, required to finally pronounce upon the
truth or falsity of the imputations, the availability of the defence of
justification or fair comment, or the ultimate effect of the statements
when considered in the entirety of the Subject Book. Those are
matters which would necessarily fall for determination upon a more
detailed consideration of the pleadings and evidence at the stage of
trial.
93. The conclusion that the aforesaid statements disclose a prima
facie case of defamation, however, does not by itself answer the
further question as to the nature and extent of the interim relief which
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ought to follow. The fact that certain passages in a literary work may,
at the interlocutory stage, be found to be prima facie objectionable
does not necessarily mean that the publication of the work as a whole
must be interdicted. The relief has necessarily to bear a reasonable
relationship with the nature and extent of the prima facie injury or
prejudice found to warrant protection.
94. This aspect assumes particular significance in the present case
since the learned Trial Court, while examining the various statements
relied upon by Mr. Rana Kapoor, did not find all of them to be
defamatory. The finding of prima facie defamation is confined to
Statements (iv), (vii) and (x), while Statement (ii) was found to be
derogatory and the remaining statements were not found to warrant a
conclusion of defamation. Mr. Rana Kapoor has not challenged those
findings. The question, therefore, is whether, having found only the
aforesaid statements to be prima facie defamatory, the learned Trial
Court was justified in extending the restraint to the Subject Book in its
entirety.
95. It is this aspect which, in the opinion of this Court, requires
closer examination, particularly having regard to the nature of the
Subject Book as a literary work, the limited nature of the findings
returned by the learned Trial Court, and the requirement that
interlocutory relief be moulded in a manner commensurate with the
prima facie case found to exist.
96. It is noted that the learned Trial Court has proceeded to hold
that the balance of convenience lies in favour of Mr. Rana Kapoor,
principally on the consideration that injury to reputation, once caused,
may not be capable of being adequately reversed. This consideration
is undoubtedly relevant. However, the assessment of balance of
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convenience must necessarily take into account the competing
prejudice which may result from the grant of the relief sought.
97. The Subject Book was published on 22.12.2020 and,
admittedly, remained in circulation for a considerable period before
the proceedings culminated in the Impugned Order. The Appellants
have placed considerable reliance upon this circumstance and upon
the fact that no specific material demonstrating loss of reputation
during this period has been brought to the notice of the Court.

98. The explanation furnished by Mr. Rana Kapoor regarding the
period during which he remained incarcerated and the date on which
he claims to have acquired knowledge of the Subject Book has also
been noticed by this Court. The period of incarceration cannot, by
itself, be treated as disentitling him from seeking relief.
99. However, once knowledge of the publication is attributed to
January 2022, the subsequent passage of time remains a relevant
circumstance while examining whether a blanket restraint upon a
work which has already been published and circulated for a substantial
period is necessary at the interlocutory stage.
100. Similarly, the prejudice which may be caused to the Appellants
cannot be disregarded. The Impugned Order, in its present form, does
not merely prevent further dissemination of the statements found to be
prima facie defamatory. It prevents the Appellants from publishing,
selling, distributing or circulating the Subject Book in its entirety.
Such a direction necessarily operates upon those portions of the
Subject Book which have neither been found to be defamatory nor
made the subject matter of any successful challenge before this Court.
The prejudice to the Appellants is therefore not confined to the
financial consequences of discontinuing circulation, but also extends
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to the restraint upon the continued dissemination of those portions of
the Subject Book which have not been found to be defamatory.
101. The balance of convenience, therefore, cannot be viewed only
from the perspective of the possible injury to the reputation of Mr.
Rana Kapoor. It must also take into account the consequence of
restraining an entire literary work when the prima facie finding of
defamation is confined to particular passages thereof. The competing
interests are required to be balanced in a manner which protects the
reputation of the person concerned without imposing a restraint wider
than what is necessary to address the prima facie injury.
102. This Court is also conscious of the submission that the Subject
Book concerns the rise and fall of Yes Bank and the role of its
principal figures, including Mr. Rana Kapoor, and that the subject
matter is one which has received substantial public attention. This
circumstance does not, by itself, furnish a defence to a prima facie
defamatory statement. It does, however, form part of the
circumstances in which the Court is required to determine the extent
of interim restraint.
103. The present case, therefore, would require this Court to,
evaluate the two competing rights, each of which is a precious one and
render a commensurate relief. This Court, at this stage, is not making
a choice between the competing claims of reputation and freedom of
expression in absolute terms. The same is a duty cast upon the
concerned Trial Court.
104. The duty cast upon this Court, at this stage, is to ensure that till
such time as the final adjudication is not effected, to consider whether
the order of totally injuncting the publication of the book would be
justified while measuring the rival claims of both sides. This Court is
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of the opinion that, pending trial, the ban on the publication of the
book is clearly not warranted. A total ban on the publication of the
book, to the mind of this Court, tilts the balance in the favour of one
category of rights asserted, namely that of the right to social
reputation, without addressing the right to freedom of speech and
expression which is guaranteed by the Constitution. Cleary, an order
that effectively takes away one right in preference for the other, that
too at a stage before the rival contentions can be analysed and
appreciated in detail, is a bit extreme and unwarranted. The learned
Trial Court appears to have lost sight of the need for maintaining a
balance of the rights asserted on behalf of the rival parties. The right
way forward, therefore, at this stage, would be to calibrate the relief in
a manner such that neither right is unduly stifled or given precedence
over the other. This Court is consequently of the view that the
protection which is warranted can be secured without necessarily
bringing the entire Subject Book within the scope of the injunction.
105. The aforesaid approach finds further support in the decision of
this Court in Swami Ramdev (supra), wherein, while considering the
grant of interim relief in respect of a literary work dealing with a
public figure, this Court underscored the need to balance the
competing claims of the right to social reputation and the right to
freedom of speech and expression. The Court held that a blanket
restraint on publication, at the interlocutory stage, would be
unwarranted where the protection of reputation could be adequately
secured without bringing the entire literary work within the scope of
the injunction. Emphasising that neither right ought to be unduly
stifled or accorded precedence over the other, this Court held that the
appropriate course would be to calibrate the relief in a manner that
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preserves the competing rights. The relevant observations in Swami
Ramdev (supra) are extracted hereinbelow:
“127 . The contention of the respondents has been that freedom of
speech and expression under Article 19(1)( a ) of the Constitution of
India is supreme and cannot in any manner be qualified by the
contentions raised in civil disputes contending that the right to
freedom of speech and expression be regulated in a manner that it
does not circumscribe or a impinge on another's right to reputation.
The said contention clearly cannot be accepted. This is so in as
much as ruled in Charu Khurana v. Union of India , AIR (2015)
839, dignity is a quintessential quality of a personality, for it is a
highly cherished value as observed by the Supreme Court in
Subramniam Swamy v. Union of India , (2016) 7 SCC 221 laying
down further vide para 133 thereof, thus perceived the right to
honour, dignity and reputation are the basic constituents of the
right to life under Article 21. The verdict in Subramniam Swamy
(supra) categorically observes that to state that the right to
reputation can be impinged and remains unprotected inter se
private disputes pertaining to reputation would not be correct and
also lays down vide para 144 of the said verdict that ―reputation‖ of
one cannot be allowed to be crucified at the altar of the other's right
of free speech and that the balance between the two rights needs to
be struck and that the reputation being an inherent component of
Article 21 of the Constitution of India, it should not be allowed to
be sullied only because another individual can have its freedom.
Undoubtedly, when there is an abridgement and the reasonable
restrictions imposed so that both right exists, such an abridgement
or restriction has only to be to the extent what is absolutely
necessary.
128. The observations of the Supreme Court in paras 133 to 144 of
the verdict of the Subramaniam Swamy (supra) are to the effect:
― 133. In Charu Khurana v. Union of India 124, it has been
ruled that dignity is the quintessential quality of a
personality, for it is a highly cherished value. Thus perceived,
right to honour, dignity and reputation are the basic
constituents of right under Article 21. Submission of the
learned counsel for the petitioners is that reputation as an
aspect of Article 21 is always available against the high
handed action of the State. To state that such right can be
impinged and remains unprotected inter se private disputes
pertaining to reputation would not be correct. Neither this
right be overridden and blotched notwithstanding malice, vile
and venal attack to tarnish and destroy the reputation of
another by stating that curbs and puts unreasonable
restriction on the freedom of speech and expression. There is
no gainsaying that individual rights form the fundamental
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fulcrum of collective harmony and interest of a society. There
can be no denial of the fact that the right to freedom of
speech and expression is absolutely sacrosanct.
Simultaneously, right to life as is understood in the expansive
horizon of Article 21 has its own significance. We cannot
forget the rhetoric utterance of Patrick Henry: —
― Is life so dear, or peace so sweet, as to be purchased at
the price of chains and slavery? Forbid it, Almighty God!
I know not what course others may take, but as for me,
give me liberty, or give me death! ‖
134. In this context, we also think it apt to quote a passage
from Edmund Burke: —
― Men are qualified for civil liberty, in exact proportion to
their disposition to put moral chains upon their own
appetites; in proportion as their love to justice is above
their rapacity; in proportion as their soundness and
sobriety of understanding is above their vanity and
presumption; in proportion as they are more disposed to
listen to the counsel of the wise and good, in preference to
the flattery of knaves. Society cannot exist unless a
controlling power upon will and appetite be placed
somewhere and the less of it there is within, the more there
must be without. It is ordained in the eternal constitution
of things that men of intemperate minds cannot be free.
Their passions forge their fetters 126. ‖
135. The thoughts of the aforesaid two thinkers, as we
understand, are not contrary to each other. They relate to
different situations and conceptually two different ideas; one
speaks of an attitude of compromising liberty by accepting
chains and slavery to save life and remain in peace than to
death, and the other view relates to “qualified civil liberty”
and needed control for existence of the Patrick Henry,
Speech in House of Burgesses on 23-3-1775 (Virginia) 126
Alfred Howard, The Beauties of Burke (T. Davison, London)
109 140 society. Contexts are not different and reflect one
idea. Rhetorics may have its own place when there is
disproportionate restriction but acceptable restraint
subserves the social interest. In the case at hand, it is to be
seen whether right to freedom and speech and expression
can be allowed so much room that even reputation of an
individual which is a constituent of Article 21 would have
no entry into that area. To put differently, in the name of
freedom of speech and expression, should one be allowed to
mar the other's reputation as is understood within the ambit
of defamation as defined in criminal law .
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136. To appreciate what we have posed hereinabove, it is
necessary to dwell upon balancing the fundamental rights.
It has been argued by the learned counsel for the petitioners
that the right conferred under Article 19(1)(a) has to be
kept at a different pedestal than the individual reputation
which has been recognized as an aspect of Article 21 of the
Constitution. In fact the submission is that right to freedom
of speech and expression which includes freedom of press
should be given higher status and the individual's right to
have his/her reputation should yield to the said right . In this
regard a passage from Sakal Papers (P) Ltd. (supra) has been
commended us. It says: —
― ……Freedom of speech can be restricted only in the
interests of the security of the State, friendly relations with
foreign State, public order, decency or morality or in
relation to contempt of court, defamation or incitement to
an offence. It cannot, like the freedom to carry on
business, be curtailed in the interest of the general public.
If a law directly affecting it is challenged, it is no answer
that the restrictions enacted by it are justifiable under
clauses (3) to (6). For, the scheme of Article 19 is to
enumerate different freedoms separately and then to
specify the extent of restrictions to which they may be
subjected and the objects for securing which this could
be done. A citizen is entitled to enjoy each and every one
of the freedoms together and clause (1) does not prefer
one freedom to another. That is the plain meaning of this
clause. It follows from this that the State cannot make a
law which directly restricts one freedom even for
securing the better enjoyment of another freedom . ‖
137. Having bestowed our anxious consideration on the
said passage, we are disposed to think that the above
passage is of no assistance to the petitioners, for the issue
herein is sustenance and balancing of the separate rights,
one under Article 19(1)(a) and the other, under Article 21.
Hence, the concept of equipose and counterweighing
fundamental rights of one with other person. not a case of
mere better enjoyment of another freedom . In Acharya
Maharajshri Narendra Prasadji Anandprasadji Maharaj v. The
State of Gujarat127 , it has been observed that a particular
fundamental right cannot exist in isolation in a watertight
compartment. One fundamental right of a person may have
to coexist in harmony with the exercise of another
fundamental right by others and also with reasonable and
valid exercise of power by the State in the light of the
Directive Principles in the interests of social welfare as a
whole. The Court's duty is to strike a balance between
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competing claims of different interests. In Delhi Transport
Corporation v. D.T.C. Mazdoor Congress128 the Court has
ruled that Articles relating to fundamental rights are all parts
of an integrated scheme in the Constitution and their waters
must mix to constitute that grand flow of unimpeded and
impartial justice; social, economic and political, and of
equality of status and opportunity which imply absence of
unreasonable or unfair discrimination between individuals or
groups or classes. In St. Stephen's College v. University of
Delhi129 this Court while emphasizing the need for
balancing the fundamental rights observed that:
96…. it is necessary to mediate between Article 29(2) and
Article 30(1), between letter and spirit of these articles,
between traditions of the past and the convenience of the
present, between society's need for stability and its need
for change. ‖
138. In Mr. ‗X‘ v. Hospital ‗Z‘130 this Court stated that,
― 44…..where there is a clash of two Fundamental Rights,
the right to privacy as part of right to life and Ms. „Y's
right to lead a healthy life which is her Fundamental Right
under Article 21, the right which would advance the public
morality or public interest, would alone be enforced
through the process of court, for the reason that moral
considerations cannot be kept at bay and the Judges are
not expected to sit as mute structures of clay in the hall
known as the courtroom, but have to be sensitive, “in the
sense that they must keep their fingers firmly upon the
pulse of the accepted morality of the day”.
That apart, we would also add that there has to be emphasis
on advancement of public or social interest.
139. In Post Graduate Institute of Medical Education &
Research, Chandigarh v. Faculty Association131 while
emphasizing the need to balance the fundamental rights, this
Court held that: —
― … It is to be appreciated that Article 15(4) is an enabling
provision like Article 16(4) and the reservation under
either provision should not exceed legitimate limits. In
making reservations for the Backward Classes, the State
cannot ignore the fundamental rights of the rest of the
citizens. The special provision under Article 15(4) [sic
16(4)] must therefore strike a balance between several
relevant considerations and proceed objectively”.
140. In Ram Jethmalani v. Union of India132 it has been
held that the rights of citizens, to effectively seek the
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protection of fundamental rights have to be balanced
against the rights of citizens and persons under Article 21.
The latter cannot be sacrificed on the anvil of fervid desire
to find instantaneous solutions to systemic problems
through defamation speech, for it would lead to dangerous
circumstances and anarchy may become the order of the
day.
141. In Sahara India Real Estate Corporation Ltd. (supra)
while describing the role of this Court in balancing the
fundamental rights, the Constitution Bench observed that the
Supreme Court is not only the sentinel of the fundamental
rights but also a balancing wheel between the rights, subject
to social control. The larger Bench further observed that: —
“Freedom of expression is not an absolute value under
our Constitution. It must not be forgotten that no single
value, no matter exalted, can bear the full burden of
upholding a democratic system of government.
Underlying our constitutional system are a number of
important values, all of which help to guarantee our
liberties, but in ways which sometimes conflict. Under
our Constitution, probably, no values are absolute. All
important values, therefore, must be qualified and
balanced against other important, and often competing,
values. This process of definition, qualification and
balancing is as much required with respect to the value
of freedom of expression as it is for other values”.
142. In Maneka Gandhi (supra), it has been held: —
― 5. … It is indeed difficult to see on what principle we can
refuse to give its plain natural meaning to the expression
„personal liberty‟ as used in Article 21 and read it in a
narrow and restricted sense so as to exclude those
attributes of personal liberty which are specifically dealt
with in Article 19. We do not think that this would be a
correct way of interpreting the provisions of the
Constitution conferring fundamental rights. The attempt of
the Court should be to expand the reach and ambit of the
fundamental rights rather than attenuate their meaning
and content by a process of judicial construction. The
wavelength for comprehending the scope and ambit of the
fundamental rights has been set by this Court in R.C.
Cooper case (supra) and our approach in the
interpretation of the fundamental rights must now be in
tune with this wavelength. We may point out even at the
cost of repetition that this Court has said in so many terms
in R.C. Cooper case (supra) that each freedom has
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different dimensions and there may be overlapping
between different fundamental rights and therefore it is
not a valid argument to say that the expression „personal
liberty‟ in Article 21 must be so interpreted as to avoid
overlapping between that article and Article 19(1). ‖
Krishna Iyer, J., in his concurring opinion, has observed
thus: —
― 96. ……. the law is now settled, as I apprehend it, that no
article in Part III is an island but part of a continent, and
the conspectus of the whole part gives the direction and
correction needed for interpretation of these basic
provisions. Man is not dissectible into separate limbs
and, likewise, cardinal rights in an organic constitution,
which make man human have a synthesis. The
proposition is indubitable that Article 21 does not, in a
given situation, exclude Article 19 if both rights are
breached .
97. We may switch to Article 19 very briefly and travel
along another street for a while. Is freedom of extra-
territorial travel to assure which is the primary office of
an Indian passport, a facet of the freedom of speech and
expression, of profession or vocation under Article 19?
My total consensus with Shri Justice Bhagwati jettisons
from this judgment the profusion of precedents and the
mosaic of many points and confines me to some
fundamentals confusion on which, with all the clarity on
details, may mar the conclusion. It is a salutary thought
that the summit Court should not interpret constitutional
rights enshrined in Part III to choke its life-breath or chill
its ilan vital by processes of legalism, overruling the
enduring values burning in the bosoms of those who won
our independence and drew up our founding document.
We must also remember that when this Court lays down
the law, not ad hoc tunes but essential notes, not
temporary tumult but transcendental truth, must guide the
judicial process in translating into authoritative notation
and mood music of the Constitution. ‖
Beg, J. has stated that: —
― Articles dealing with different fundamental rights
contained in Part III of the Constitution do not represent
entirely separate streams of rights which do not mingle at
many points. They are all parts of an integrated scheme in
the Constitution. Their waters must mix to constitute that
grand flow of unimpeded and impartial Justice (social,
economic and political), ….. ‖
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143. In Mohd. Arif alias Ashfaq v. Registrar , Supreme Court
of India and others133, wherein the majority in the
Constitution Bench has observed that the fundamental right
to life among all fundamental rights is the most precious to
all human beings.
144. The aforementioned authorities clearly state that
balancing of fundamental rights is a constitutional
necessity. It is the duty of the Court to strike a balance so
that the values are sustained. The submission is that
continuance of criminal defamation under Section 499
IPC is constitutionally inconceivable as it creates a serious
dent in the right to freedom of speech and expression. It is
urged that to have defamation as a component of criminal
law is an anathema to the idea of free speech which is
recognized under the Constitution and, therefore,
criminalization of defamation in any form is an
unreasonable restriction. We have already held that
reputation is an inextricable aspect of right to life under
Article 21 of the Constitution and the State in order to
sustain and protect the said reputation of an individual
has kept the provision under Section 499 IPC alive as a
part of law. The seminal point is permissibility of criminal
defamation as a reasonable restriction as understood
under Article 19(2) of the Constitution. To elucidate, the
submission is that criminal defamation, a pre-
Constitution law is totally alien to the concept of free
speech. As stated earlier, the right to reputation is a
constituent of Article 21 of the Constitution. It is an
individual's fundamental right and, therefore, balancing
of fundamental right is imperative. The Court has spoken
about synthesis and overlapping of fundamental rights, and
thus, sometimes conflicts between two rights and competing
values. In the name of freedom of speech and expression,
the right of another cannot be jeopardized. In this regard,
148 reproduction of a passage from Noise Pollution (V),
In re 137 would be apposite. It reads as follows:—
― … Undoubtedly, the freedom of speech and right to
expression are fundamental rights but the rights are not
absolute. Nobody can claim a fundamental right to create
noise by amplifying the sound of his speech with the help
of loudspeakers. While one has a right to speech, others
have a right to listen or decline to listen. Nobody can be
compelled to listen and nobody can claim that he has a
right to make his voice trespass into the ears or mind of
others. Nobody can indulge in aural aggression. If anyone
increases his volume of speech and that too with the
assistance of artificial devices so as to compulsorily
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expose unwilling persons to hear a noise raised to
unpleasant or obnoxious levels, then the person speaking
is violating the right of others to a peaceful, comfortable
and pollution-free life guaranteed by Article 21. Article
19(1)(a) cannot be pressed into service for defeating the
fundamental right guaranteed by Article 21. We need not
further dwell on this aspect. Two decisions in this regard
delivered by the High Courts have been brought to our
notice wherein the right to live in an atmosphere free from
noise pollution has been upheld as the one guaranteed by
Article 21 of the Constitution. These decisions are Free
Legal Aid Cell Shri Sugan Chand Aggarwal v. Govt. of
NCT of Delhi135 and P.A. Jacob v. Supdt. of Police136.
We have carefully gone through the reasoning adopted in
the two decisions and the principle of law laid down
therein, in particular, the exposition of Article 21 of the
Constitution. We find ourselves in entire agreement
therewith. ‖
We are in respectful agreement with the aforesaid
enunciation of law. Reputation being an inherent
component of Article 21, we do not think it should be
allowed to be sullied solely because another individual can
have its freedom. It is not a restriction that has an inevitable
consequence which impairs circulation of thought and
ideas. In fact, it is control regard being had to another
person's right to go to Court and state that he has been
wronged and abused. He can take recourse to a procedure
recognized and accepted in law to retrieve and redeem his
reputation. Therefore, the balance between the two rights
needs to be struck. “Reputation” of one cannot be allowed
to be crucified at the altar of the other's right of free speech.
The legislature in its wisdom has not thought it appropriate
to abolish criminality of defamation in the obtaining social
climate.”
*
134. Though undoubtedly, the verdict of the Supreme Court in
Subramaniam Swamy (supra) relates to the aspect of upholding the
constitutional validity of Section 499 and 500 of the Penal Code,
1860 and Section 199 of the Criminal Procedure Code, 1973
nevertheless, the ambit of the right to reputation under Article 21 of
the Constitution of India and that it has necessary existence in
conjunction with the right to freedom of speech and expression in a
manner whereby both the fundamental rights of the right of
reputation inherent under Article 21 of the Constitution of India
and the right to freedom of speech and expression ordained under
Article 19(1)(a) of the Constitution of India are both to co-exist in
harmony and as a consequence thereof, as observed in para 137 of
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the said verdict already adverted to herein above and also as
observed in Acharya Maharajshri Narendra Prasadji
Anandprasadji Maharaj v. The State of Gujarat , (1975) 1 SCC 11,
it has been observed that a particular fundamental right cannot exist
in isolation in a watertight compartment and one fundamental right
of a person may have to co-exist in harmony with the exercise of
another fundamental right by others and also with reasonable and
valid exercise of power by the State in the light of the Directive
Principles in the interests of social welfare as a whole and that it is
essential to observe that as laid down vide paras 68 and 69 of the
said verdict which read to the effect:
― 68. The position has further become clear in Ganga Bai v.
Vijay Kumar wherein this Court has ruled thus: —
― There is an inherent right in every person to bring a
suit of a civil nature and unless the suit is barred by
statue one may, at one's peril, bring a suit one's choice.
It is no answer to a suit, howsoever frivolous the claim,
that the law confers no such right to sue. A suit for its
maintainability requires no authority of law and it is
enough that no statute bars the suit.”
69. We have referred to this aspect only to clarify the
position that it is beyond any trace of doubt that civil action
for which there is no codified law in India, a common law
right can be taken recourse to under Section 9 of the Civil
Procedure Code, 1908, unless there is specific statutory bar
in that regard.”,—
the right to civil action for infringement of the right to reputation
and thus to sue against defamation is a cause of action for which
though there being no codified law in India, civil action can be
taken recourse to under Section 9 CPC 1908 and thus the
observation of the Hon'ble Supreme Court in relation to the ambit
and contours of the right to reputation as being inherent under
Article 21 of the Constitution of India with which the right to
freedom of speech and expression under Article 19(1)( a ) has to be
balanced and that the right to reputation cannot be sacrificed or
crucified at the altar of the right of freedom of speech and
expression, has equal force in a civil action.
*
135. The balancing of the fundamental right of the individual to
his/her reputation under Article 21 of the Constitution of India in
coexistence in harmony with the exercise of the right of freedom of
speech and expression of another under Article 19(1)( a ) of the
Constitution of India has been upheld once again as brought forth
through the observations in paras 312, 313 and 314 of the majority
judgment in the famous Aadhar case, vide verdict dated 26-9-2018,
which read to the effect:
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“312) This very exercise of balancing of two fundamental
rights was also carried out in Subramanian Swamy v. Union
of India, Ministry of Law106 where the Court dealt with the
matter in the following manner:
“122. In State of Madras v. V.G. Row [State of Madras v.
V.G. Row, (1952) 1 SCC 410 : AIR 1952 SC 196 : 1952
Cri LJ 966], the Court has ruled that the test of
reasonableness, wherever prescribed, should be applied
to each individual statute impugned and no abstract
standard, or general pattern of reasonableness can be
laid down as applicable to all cases. The nature of the
right alleged to have been infringed, the underlying
purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, the
disproportion of the imposition, the prevailing conditions
at the time, should all enter into the judicial verdict.
xx xx xx
105 515 US 646 (1995)
106 (2016) 7 SCC 221
130. The principles as regards reasonable restriction as
has been stated by this Court from time to time are that
the restriction should not be excessive and in public
interest. The legislation should not invade the rights and
should not smack of arbitrariness. The test of
reasonableness cannot be determined by laying down
any abstract standard or general pattern. It would
depend upon the nature of the right which has been
infringed or sought to be infringed. The ultimate
“impact”, that is, effect on the right has to be
determined. The “impact doctrine” or the principle of
“inevitable effect” or “inevitable consequence” stands in
contradistinction to abuse or misuse of a legislation or a
statutory provision depending upon the circumstances of
the case. The prevailing conditions of the time and the
principles of proportionality of restraint are to be kept in
mind by the court while adjudging the constitutionality
of a provision regard being had to the nature of the right.
The nature of social control which includes public
interest has a role. The conception of social interest has
to be borne in mind while considering reasonableness of
the restriction imposed on a right. The social interest
principle would include the felt needs of the society.
xx xx xx Balancing of fundamental rights
136. To appreciate what we have posed hereinabove, it is
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necessary to dwell upon balancing the fundamental
rights. It has been argued by the learned counsel for the
petitioners that the right conferred under Article 19(1)(a)
has to be kept at a different pedestal than the individual
reputation which has been recognised as an aspect of
Article 21 of the Constitution. In fact the submission is
that right to freedom of speech and expression which
includes freedom of press should be given higher status
and the individual's right to have his/her reputation
should yield to the said right. In this regard a passage
from Sakal Papers (P) Ltd. [Sakal Papers (P) Ltd. v. Union
of India, (1962) 3 SCR 842 : AIR 1962 SC 305] has been
commended to us.
It says: (AIR pp. 313-14, para 36) “36. … Freedom of
speech can be restricted only in the interests of the
security of the State, friendly relations with foreign State,
public order, decency or morality or in relation to
contempt of court, defamation or incitement to an
offence. It cannot, like the freedom to carry on business,
be curtailed in the interest of the general public. If a law
directly affecting it is challenged, it is no answer that the
restrictions enacted by it are justifiable under clauses (3)
to (6). For, the scheme of Article 19 is to enumerate
different freedoms separately and then to specify the
extent of restrictions to which they may be subjected and
the objects for securing which this could be done. A
citizen is entitled to enjoy each and every one of the
freedoms together and clause (1) does not prefer one
freedom to another. That is the plain meaning of this
clause. It follows from this that the State cannot make a
law which directly restricts one freedom even for
securing the better enjoyment of another freedom.”
(emphasis supplied)
137. Having bestowed our anxious consideration on the
said passage, we are disposed to think that the above
passage is of no assistance to the petitioners, for the
issue herein is sustenance and balancing of the separate
rights, one under Article 19(1)(a) and the other, under
Article 21. Hence, the concept of equipoise and
counterweighing fundamental rights of one with other
person. It is not a case of mere better enjoyment of
another freedom. In Acharya Maharajshri Narendra
Prasadji Anandprasadji Maharaj v. State of Gujarat
[Acharya Maharajshri Narendra Prasadji Anandprasadji
Maharaj v. State of Gujarat, (1975) 1 SCC 11], it has been
observed that a particular fundamental right cannot exist
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in isolation in a watertight compartment.
One fundamental right of a person may have to coexist
in harmony with the exercise of another fundamental
right by others and also with reasonable and valid
exercise of power by the State in the light of the directive
principles in the interests of social welfare as a whole.
The Court's duty is to strike a balance between
competing claims of different interests…
*
174. It is essential to observe that vide the order of Hon'ble
Division Bench in Pushp Sharma v. D.B. Corp. Ltd. and Forum for
Media and Literature v. D.B. Corp. Ltd. (supra), the observations
in para 21 thereof spell out categorically as already dealt with in
the present judgment of this Court highlight the necessity of the
Court to balance the rights of freedom of speech and expression
and of the right to reputation rather than to dilute them. The verdict
of the Hon'ble Division Bench referred to hereinabove, vide para
23 thereof inter alia observes to the effect ― Unless it is
demonstrated at the threshold that the offending content is
malicious or palpably false, an injunction and that too an ex-parte
one, without recording any reasons should not be given.
*
―183. Thus as the petitioner about whom the BOOK is written
about is living human being and thus entitled to be treated with
dignity and has a right of social reputation as an ordinary citizen
even if he be a public figure, and as reputation is a cherished value
and an element of personal security, portions of the BOOK which
make readers think that he is an ambitious villain, until so proved
in the Court of Law are necessarily to be restrained from being
published and distributed for sale till disposal of the suit bearing
no. 619/2017 pending before the learned ACJ-CCJ-ARC(E),
Karkardooma Courts, Delhi. This is so as the right to reputation of
a living individual under Article 21 of the Constitution of India
cannot be sacrificed and crucified at the altar of the right to
freedom of speech and expression of another and both have to be
harmonized and balanced in as much as no amount of damages can
redeem the damage to reputation of any person and merely because
there have been previous publications on the same issue, the same
does not permit any repetitions of prima facie defamatory
insinuations against him.

185. As regards the submissions made in relation to other portions
of the BOOK as detailed in the petition, the same prima facie fall
within the domain of thought provocation and debate and criticism
and the prayers in relation thereto cannot presently be accepted.
186. The petitioners C.M.(M) 556/18 & C.M.(M) 557/18 are
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disposed of accordingly and all interim orders made in the suit
bearing no. 619/2017 pending before the learned ACJ-CCJ-
ARC(E), Karkardooma Courts, Delhi and in MCA No. 8/2017 and
in MCA No. 10/2017 disposed of by the ASCJ (East) and by this
Court in CM(M) 556/18 and CM(M) 557/18 are modified
accordingly.‖
(emphasis supplied)


106. The same calibrated approach is warranted in the present case.
The learned Trial Court, upon examining the statements specifically
complained of, found Statements (iv), (vii) and (x) to be defamatory,
while Statement (ii) was found to be derogatory. The finding in
respect of these specific statements, therefore, cannot by itself justify a
restraint upon the Subject Book in its entirety.

107. There is, in addition, a further circumstance which this Court
cannot lose sight of. The Appellant, Pawan Chand Lall, has, before
this Court, sought to advance submissions founded upon his position
as the author of the Subject Book and upon the freedom available to
an author to express his views and opinions. The material on record,
however, reflects that Pawan Chand Lall did not appear before the
learned Trial Court and was proceeded ex parte .
108. This Court is cognizant of the fact that the author was
proceeded ex parte cannot, by itself, determine the merits of the
controversy. Simultaneously, where the author, who is now asserting
before this Court the factual and legal basis underlying the passages in
question, chose not to appear before the learned Trial Court, this Court
would be circumspect in undertaking, for the first time in appellate
proceedings, an examination of factual matters which were not placed
before the learned Trial Court by him.
109. The aforesaid circumstance, however, does not justify
extending the injunction beyond the material in respect of which the
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learned Trial Court has actually returned a finding of prima facie
defamation. The fact that Pawan Chand Lall did not contest the
proceedings before the learned Trial Court cannot convert the prima
facie findings concerning four particular statements into a finding that
the Subject Book as a whole is defamatory.
110. The discretion to grant an interlocutory injunction necessarily
carries with it the power, and indeed the obligation, to mould the relief
in accordance with the circumstances of the case. The object of such
relief is to preserve the subject matter of the dispute and prevent the
apprehended injury during the pendency of the proceedings; it is not
to grant, at the interlocutory stage, a relief which travels beyond the
injury which the Court has found sufficient to warrant protection.
111. In the present case, the apprehended injury identified by the
learned Trial Court arises from Statements (iv), (vii) and (x).
Statement (ii), though not found to be defamatory, has been held to be
derogatory, and this Court has found no reason to differ from that
view at this stage. Whether Statement (ii) is, in the final analysis,
derogatory or otherwise objectionable is a determination vested in the
learned Trial Court. In such circumstances, it would be appropriate
that the publication of Statement (ii) be kept in abeyance until that
determination is made, particularly as the prejudice to the Appellants
from such a course is confined to a single passage. The remaining
contents of the Subject Book have not been found, at this stage, to
constitute defamatory or derogatory material, and Mr. Rana Kapoor
has also not challenged the findings in respect of those other
statements.
112. The restraint, therefore, ought to be confined to the material in
respect of which the prima facie finding has been sustained, namely
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Statement (ii), (iv), (vii) and (x). Such a course would protect the
reputation of Mr. Rana Kapoor against further dissemination of the
specific imputations found to be prima facie defamatory or
derogatory, while avoiding an unnecessary restraint upon the
remaining contents of the Subject Book. The relief proposed would be
in cadence with the Judgments and the law espoused therein, as
discussed in detail hereinbefore.
113. This approach also accords with the principle that an
interlocutory injunction, particularly one which operates upon
publication, ought to be no wider than necessary. The Court must
remain conscious that the findings at this stage are provisional and
that the final determination of the truth, justification, fair comment,
privilege and other defences can only follow upon a fuller
adjudication at trial.

CONCLUSION:
114. Consequently, while this Court finds no reason to interfere with
the findings returned by the learned Trial Court in respect of
Statements (iv), (vii) and (x), or with its characterization of Statement
(ii) as derogatory, the consequential direction restraining the
publication, sale, distribution and circulation of the Subject Book in its
entirety cannot be sustained in its present form.
115. The Impugned Order is accordingly modified to the extent that
the restraint in respect of the Subject Book shall operate only against
those portions thereof in which Statements (ii), (iv), (vii) and (x), as
identified in the Impugned Order, occur. The remaining portions of
the Subject Book shall not be covered by the injunction merely by
reason of the findings returned in respect of the aforesaid statements.
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116. It is clarified that the aforesaid modification is confined to the
scope of the interim relief and shall not be construed as a final
expression of opinion on the merits of the allegations or the defences
available to the parties. The learned Trial Court shall adjudicate the
Suit uninfluenced by any observation contained in the present
Judgment, save to the extent expressly determined herein for the
purposes of the interlocutory relief.
117. Accordingly, the present Appeals, along with pending
Applications, if any, are disposed of in the aforesaid terms.

118. No order as to costs.




HARISH VAIDYANATHAN SHANKAR, J.

NOVEMBER 06, 2026/jk
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