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1978 Supreme(Cal) 269
High Court Of Calcutta
SABYASACHI MUKHERJI
TARAPADA MAJUMDAR - Appellant
Versus
K.B.GHOSH AND CO. - Respondent
Suit 510 Of 1977
Decided On : 04/10/1978
Jayanta Mitra, S.PAL
A lawyer acting on instructions from a client in respect of an impending judicial proceeding enjoys qualified privilege, and the burden of proving express malice lies on the plaintiff.
Headnote:
DEFAMATION - ABSOLUTE PRIVILEGE - ADVOCATE - STATEMENTS MADE IN COURSE OF JUDICIAL PROCEEDINGS - IMMUNITY FROM LIABILITY - QUALIFIED PRIVILEGE - STATEMENTS MADE BY LAWYER ON INSTRUCTIONS OF CLIENT IN RESPECT OF IMPENDING JUDICIAL PROCEEDINGS - IMMUNITY FROM LIABILITY - ABSENCE OF MALICE - BURDEN OF PROOF.
Fact of the Case:
The plaintiff, an arbitrator, filed a defamation suit against the defendant law firm, K. B. Ghosh and Co., for statements made in a letter written to the plaintiff by the law firm on instructions from their clients, alleging misconduct and moral turpitude on the part of the plaintiff.
Finding of the Court:
The court held that the statements made by the law firm were protected by qualified privilege as they were made on instructions from their clients in respect of an impending judicial proceeding and there was no evidence of express malice on the part of the law firm.
Issues: Whether the statements made by the law firm were protected by absolute or qualified privilege.
Ratio Decidendi: The court held that lawyers enjoy qualified privilege in respect of statements made on instructions from their clients in connection with an impending judicial proceeding, and that the burden of proving express malice lies on the plaintiff.
Final Decision: The court dismissed the defamation suit against the law firm.
( 1 ) THIS is an application by defendant No. 1 K. B. Ghosh and Co. a firm carrying on business and having its office at 6, Old Post Office Street, Calcutta in Suit No. 510 of 1977 asking that the suit against the applicant, K. B. Ghosh and Co. be dismissed, the name of M/s. K. B. Ghosh and Co. be deleted from the cause title of the plaint and the plaint be amended by deleting or striking out the allegations against K. B. Ghosh and Co. It appears that there was a partnership firm under the name and style of Calcutta Decorators of which Purna Roy Chowdhury, Smt. Mallika Roy Chowdhury, one Amit Roy Chowdhury and Ajit Kumar Roy Chowdhury, who are defendants Nos. 2, 3 and 4 in the present suit, were the partners. There were certain disputes and there was a reference to arbitration and the arbitrators were one Tarapado Majumdar and Pari-mal Kumar Roy Chowdhury. In respect of the said arbitration proceedings, the defendant No. 1, K. B. Ghosh and Co. wrote a letter to Sri Tarapado Majumdar, who was one of the arbitrators on the 19th July, 1977 which contained, Inter alia, the following allegations:"by a letter dated 18th May, 1977 written by the Joint Arbitrator our clients were directed not to interfere with the activities of Sri Ajit Kumar Roy Chowdhury, who was described as a manager. The said letter was addressed to all the four parties concerned and was dated 18th May, 1977. From a note written by Sri Ajit Kumar Roy Chowdhury on 17th May, 1977, it transpired that he recorded the exact wordings of your said letter dated 18th May, 1977. The said fact was brought to the notice of the joint arbitrators in the meeting held on 19th June, 1977 and also by letter dated 28th June, 1977. Out of the two arbitrators, you came to the rescue of Sri Ajit Kumar Roy Chowdhury and said that to quicken the matter, you personally communicated the said fact to Sri Ajit Kumar Roy Chowdhury over the phone on 17th May, 1977. This is surely an act of misconduct on your part. You have contacted a party and discussed with him regarding the pending arbitration behind the back of others namely our clients. But our clients were really upset when they discovered that on 20th June, 1977, Sri Ajit Kumar Roy Chowdhury and his family took you and Sri Jiten Banerjee, a common friend of you and Sri Ajit Kumar Roy Chowdhury along with them to Pondicherry by 3 Up Madras Mall at his own cost and expenses. You will appreciate that as an Arbitrator when the arbitration is pending you should not accept such treatment from a party to the proceedings. You are surely guilty of moral turpitude and legal misconduct. On Sunday last 17th July, 1977 Mr. and Mrs. Ajit Kumar Roy Chowdhury took you and Mr. and Mrs. Shyamal Ghosh for entertainments. On 6th July, 1977, you accepted Rs. 56. 30p in cash from Sri Ajit Kumar Roy Chowdhury. "the letter further went on to state that the clients of K. B. Ghosh and Co. who were stated to be Sri Aparna Roy Chowdhury, Smt. Mallika Roy Chowdhury and Sri Ajit Kumar Roy Chowdhury had no hesitation to say that Sri Tarapado Majumdar could not act as an impartial arbitrator and in the fitness of things he should resign from the office. It was further alleged that the letter in question was being written on the instructions of the clients. It appears that the defendants Nos. 2, 3 and 4 who were the clients of the petitioner made an application to this Court under Sections 5, 8, 9, 11 and 41 of the Arbitration Act, 1940 more or less on the same allegations and the said letter was annexed to the petition. Sri Tarapado Majumdar was also made a party to the said application. The said application was heard by me and on 7th Sept. , 1977 by consent of the parties, I had revoked the authority of the arbitrators and umpire and had removed them and appointed a member of the Bar as the arbitrator. In those circumstances the plaintiff, Sri Tarapado Majumdar on 26th August, 1977 instituted a suit being No. 510 of 1977 against the applican
