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2010 Supreme(Cal) 923
IN THE HIGH COURT AT CALCUTTA
SANJIB BANERJEE, J.
Rose Valley Chain Marketing Systems Ltd. & other
Versus
Subal Chandra Dey & other
GA No. 2867 of 2009, GA No. 3390 of 2009, GA No. 1367 of 2010, CS No. 319 of 2009
Decided on : 4.8.2010
For the Plaintiff:Mr. Ashok Kumar Banerjee, Senior Advocate, Mr. Samit Talukdar, Senior Advocate, Mr. Pallab Banerjee, Advocate, Mr. N.C. Manna, Advocate.
For the Defendants:Mr. Jayanta Mitra, Senior Advocate, Mr. Raja Basu Chowdhury, Advocate, Mr. Arup Bhattacharya, Advocate, Ms. Sutapa Sanyal, Advocate.
A plaintiff has the choice of forum and, if an action is brought to a court that has the authority to receive it, only an overwhelming case of inconvenience would prompt the court to require the plaintiff to carry the action to a forum of convenience.
Headnote:
DEFAMATION - JURISDICTION - LEAVE UNDER CLAUSE 12 OF THE LETTERS PATENT - BALANCE OF CONVENIENCE - INJUNCTION - JUSTIFICATION - FAIR COMMENT - INTERLOCUTORY APPLICATION - Order of injunction restraining the defendants from publishing any comments imputing improper motive to the plaintiffs or describing them as cheats.
Fact of the Case:
The plaintiffs, a reputed organization with diverse business interests, filed a suit for defamation against the defendants for publishing a series of articles in their newspaper that contained scandalous statements and allegations against the plaintiffs. The plaintiffs obtained an ex parte order of injunction restraining the defendants from publishing any defamatory statements against them. The defendants filed an application for revocation of leave granted under Clause 12 of the Letters Patent, challenging the jurisdiction of the court to receive the action. The plaintiffs also filed an application under Order XXXIX Rule 2A of the Code of Civil Procedure, seeking attachment of the defendants' property and detention of the first and second defendants in civil prison for breach of the injunction order.
Finding of the Court:
The court held that the plaintiffs had a prima facie case of defamation and that the defendants had failed to show any basis for their allegations. The court found that the defendants had embarked on a vicious scheme to malign the plaintiffs and the plaintiff company. The court also held that the plaintiffs had invoked the territorial jurisdiction of the court on the ground of a part of the plaintiffs' cause of action having arisen within jurisdiction and that the defendants had not made out a case of balance of convenience to justify revocation of leave.
Issues: 1. Whether the court had jurisdiction to receive the action. 2. Whether the defendants had a valid defence of justification or fair comment. 3. Whether the plaintiffs were entitled to an injunction restraining the defendants from publishing defamatory statements.
Ratio Decidendi: 1. The court has the authority to receive an action against a defendant who carries on business within the jurisdiction, even if the cause of action did not arise within the jurisdiction. 2. A plea of justification or fair comment must be supported by some material to show that it is likely to succeed. 3. An injunction may be granted to restrain the publication of defamatory statements where the plaintiff has made out a prima facie case and the defendants have failed to show any basis for their allegations.
Final Decision: The court dismissed the defendants' application for revocation of leave and granted an injunction restraining the defendants from publishing any comments imputing improper motive to the plaintiffs or describing them as cheats. The court also ordered the attachment of the defendants' property and granted the plaintiffs liberty to apply for the detention of the first and second defendants in civil prison in the event of any breach of the injunction order.
1. An Appellate Court order of July 26, 2010 was brought to the notice of this Court on August 3, 2010 when the matters were mentioned for being taken up on urgent basis. The matters have appeared today and have been heard out pursuant to the direction of the Appellate Court.
2. G.A. No. 2867 of 2009 is the plaintiffs’ principal interlocutory application in this suit complaining of defamation. G.A. No. 3390 of 2009 is the first defendant’s application for revocation of the leave granted under Clause 12 of the Letters Patent. G.A. No. 1367 of 2010 is the plaintiffs’ application under Order XXXIX Rule 2A of the Code of Civil Procedure.
3. Since the authority of the Court to receive the action has been questioned, such matter has to be addressed first.
4. The cause title shows that the first and second defendants carry on business both within and outside the jurisdiction. It is, in a sense, an unusual cause title since once it is stated that a defendant carries on business or works for gain or resides within jurisdiction, as to whether the defendant also carries on business outside jurisdiction may not be relevant. The third defendant is not said to carry on business within jurisdiction. On the basis of the cause title alone, leave under Clause 12 of the Letters Patent was necessary only in so far as the third defendant was concerned.
5. In the first defendant’s application for revocation of leave, it has been stated that the third defendant is not a juristic entity. The first defendant says that no part of the plaintiffs’ alleged cause of action arose within jurisdiction for leave under Clause 12 of the Letters Patent to be granted. To begin with, such point may not be available to the first defendant since the first defendant has been sued in this Court on the basis of the first defendant carrying on business within jurisdiction. It is also significant that the second defendant has not applied to Court challenging the jurisdiction of the Court to receive the action. There is a serious doubt as to whether the first defendant, who has been sued on the allegation that he carries on business within jurisdiction, could have applied for revocation of leave granted under Clause 12 of the Letters Patent since such leave was unnecessary in respect of the first two defendants and was only needed qua the third defendant. But it is not necessary to engage any more on such issue since the plaint does not specify that the leave was confined to the third defendant and since the challenge would otherwise fail on merits.
6. The plaintiffs have relied on a document which has been appended to the first defendant’s affidavit in the injunction application. The plaintiffs say that the letterhead of the first defendant would indicate that the defendants had a business office in Calcutta. The plaintiffs say that it is the Lenin Sarani office which is the business office of the first two defendants in Calcutta.
7. Though the first defendant says that the Lenin Sarani office is merely an advertisement office and not an office through which the first or the second defendant carries on business, that is a question of fact which has to be assessed at a later stage.
8. Clause 12 of the Letters Patent is in three parts. The one part, which is completely irrelevant for the present purpose, covers suits for land or other immovable property where the situs of the land or immovable property is of paramount importance. The other two limbs of Clause 12 of the Letters Patent relate to situs of the cause of action and the situs of the defendant at the time of the commencement of the action. In a sense, the three limbs of Clause 12 are mutually exclusive. In a suit other than a suit for land (or other immovable property), the plaintiff may invoke the territorial jurisdiction of this Court on the basis of a part of the plaintiff’s cause of action having arisen within jurisdiction – in which case previous leave of Court has to be obtained – or on
