2017 Supreme(Del) 1305
IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJIV SAHAI ENDLAW, J.
TOSIBA APPLIANCES CO. PVT. LTD. – Appellant
Versus
KABUSHIKI KAISHA TOSHIBA & ORS. - Defendants
CS(OS) No.2356 of 1998
Decided on : 01-05-2017
Advocates:
Advocate Appeared:
For the Appellant : Mr. Preet Pal Singh with Ms. Priyam Mehta, Advs.
For the Respondent: Mr. A.J. Bhambhani, Sr. Adv. with Mr. Siddharth Yadav, Adv, Mr. Sudhir Chandra, Sr. Adv. with Mr. Nischal Anand and Mr. Aman Taneja, Advs.
Important Point – Law of agency does not apply strictly to client – lawyer relationship.
Headnote:(A) Civil Procedure Code, 1908 – Order 7 Rule 11 – Rejection of plaint – Damage suit – For a plaintiff in a suit for compensation for defamation, it is essential to disclose that each of defendants from whom compensation is claimed has defamed the plaintiff – A lawyer is not an agent of his client for client to be liable for all actions of his lawyer – Law of agency does not apply strictly to client – lawyer relationship – It is not the case of plaintiff that defendant No.1 is also marketing and selling same goods which plaintiff is selling – If there is no cause of action against defendant No.5 for defamation for having been photographed, there cannot be any cause of action for defamation against Magazine also – Impugned article is not targeted against plaintiff or its trademark and is general in nature and on a subject of public interest on which Outlook as a news Magazine was/is entitled to publish – Defendant has also tendered apology – Plaint rejected as not disclosing cause of action.
(B) Constitution of India – Articles 19(1)(g) and 21 – Freedom of speech and expression guaranteed by Article 19(1)(a) of Constitution includes freedom of press – Right to freedom of speech and expression is a right that has to get ascendance in a democratic body polity but at the same time limit has to be proportionate and not unlimited.
(C) Defamation – Payment of Damages – Reputation of an individual is not something which can be measured or equated in money – It is only a written apology contained in same media which may reach same people who may have had access to libelous material earlier published and that alone can restore reputation – Award of damages particularly in large amounts, against media houses may also have a chilling effect on media.
1. The plaintiff has instituted this suit for recovery of Rs.1 crore, jointly and severally from defendant no.1 Kabushiki Kaisha Toshiba, defendant no.2 Hathway Investments Ltd., being the owner of Outlook Magazine, defendant no.3 Deepak Shourie, President & Publisher of Outlook Magazine, defendant no.4 Vinod Mehta, Editor-in-Chief of Outlook Magazine and defendant no.5 Parveen Anand, Advocate, on account of compensation for defamation, pleading (i) that the plaintiff has been continuously and regularly manufacturing and selling domestic appliances under the brand name “TOSIBA” since the year 1975 and currently has an annual sales turnover of approximately Rs.15 crores; (ii) that the trade mark of the plaintiff “TOSIBA” has also been registered with the Trade Mark Registry; (iii) that there are a number of cases pending in various Courts between the plaintiff and the defendant no.1 Kabushiki Kaisha Toshiba in respect of the said trade mark wherein the defendant no.5 Parveen Anand, Advocate is representing the defendant no.1; (iv) that three marks “TOSHIBA” of the defendant no.1 have been rectified and the appeals against rectification have also been dismissed; however the appeals from the dismissal order are pending before the Division Bench of the Kolkata High Court; (v) that on 27th October, 1997, the plaintiff came across an article in the magazine “OUTLOOK” dated 3rd November, 1997 which as per declaration therein is owned by defendant no.2 Hathway Investment Ltd. and of which defendant no.3 Deepak Shourie is the President and Publisher and the defendant no.4 Vinod Mehta is the Editor-in-Chief; (vi) that the said article is titled “FAKE GOODS” “SPOT THE FAKE ONE” and in the photograph captioned “LAWYER PARVEEN ANAND DISPLAYS SEIZED FAKES” published with the said article a carton bearing the trade mark of the plaintiff “TOSIBA” is shown; (vii) that the products of the plaintiff are not fake and have never been seized; (viii) that the article is defamatory and has caused substantial loss to the goodwill and reputation of the plaintiff built over 25 years; (ix) that plaintiff sent letter dated 29th October, 1997 to the defendant no.5 calling upon the defendant no.5 to immediately publish an apology in the same manner and in the same magazine prominently stating that the facts given in the article regarding the plaintiff’s products are false and untrue; (x) that the defendant no.5 instead of tendering and publishing an apology contended that there was no statement attributed to him in the said publication and that the caption had been supplied by the journalist; xi) that the aforesaid reply of the defendant no.5 shows that the article has been published and the goods have been displayed in the photograph by the defendant no.5 while acting for the defendant no.1; (xii) that the plaintiff has also sent a legal notice dated 1st February, 1998 to the defendants No. 1 to 4to tender and publish an apology but which the defendants no.1 to 4 have not done; (xiii) that on the contrary, the defendant no.4 in his reply dated 26th February, 1998 stated that the journalist of the magazine had met the defendant no.5 who agreed to speak to them about the counterfeit problem and be photographed with some fake products which he had in his possession and that the defendant no.5 selected the products to be placed on his table for the photograph; (xiv) that the aforesaid reply shows that the defendants no.2 to 4 are guilty of irresponsible publication.
2. The suit was entertained and has languished for the last nearly 20 years. Though the following issues were framed on 16th July, 2012:
(i) Whether the suit has been properly verified and instituted by the plaintiff? OPP
(ii) Whether the article titled “Spot the Fake One” dated 3rd November, 1997 published in the “Outlook” magazine is defamatory of the plaintiff? OPP
(iii) Whether any member of the public associated the article titled “Spot the Fake One” dated 3rd November, 1997 published in “Outlook”
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