Indian Bank v. Prof. M. Krishna Paraiyanar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 16.07.2024
Pronounced on:02.08.2024
CORAM:
THE HONOURABLE MR.JUSTICE P.B.BALAJI C.S.No.378 of 2011 Indian Bank, Rep. by its Mr.S.Arulselvam, Deputy General Manager, Asset Recovery Management Branch Zone, No.55, Ethiraj Salai, Egmore, Chennai 600 008.
..Plaintiff Vs.
1.Prof. M.Krishan Paraiyanar, Editor in chief & Publisher, M/s.Makkalukkana Neethi Engey.
2.M/s.Makkalukkana Neethi Engey, No.N-147, 5th Main Road, Kamarajar Nagar (West), Thiruvanmiyur, Chennai 600 041.
3. MSME & TINY Industries Welfare Union, No.81, Mogappair Road, Mannurpet, Padi, Chennai 600 050.
4.E.Gnanasambantham 5.T.R.Viswanthan 6.P.R.Annamalai 7.A.Charles 8.MagiMahendran 9.Tamilazhan. A 10.Abdul Razack Usman 11.M/s.Semmozhi Tamil Achagam, Rep. by M.Krishna Paraiyanar, No.24, Chinnappa Street, Triplicane, Chennai 600 005.
...Defendants PRAYER: Plaint filed under Order VII Rule 1 of CPC r/w Order IV Rule
1 of the O.S.Rules, praying to pass judgment in favour of the plaintiff against the defendants, (a) For a permanent injunction restraining the defendants, their men, agents, servants or any other person or persons claiming through them from publishing any articles in magazines, pasting any posters and holding dharna against the plaintiff which would tarnish the goodwill and reputation of the plaintiff;
(b) Directing the defendants to pay jointly and severally liquidated exemplary damages of Rs.1,00,000,000/- (Rupees One Crore only) for the loss of goodwill and reputation of the plaintiffs for publishing defamatory articles in the monthly magazine M/s.Makkalukkana Neethey Engey and (c) pay the cost of the suit to the plaintiff. For Plaintiff : Mr.V.P.Mohammed Moin for M/s.Aiyar & Dolia For Defendants : Exparte- D1, D2, D4, D7 to D9, D11 No Appearance for D3, D5, D6 & D10 - - - - -
J U D G M E N T
The plaintiff Bank has instituted the above suit for relief of permanent injunction to restrain the defendants from publishing any articles in magazines, pasting any posters and holding dharna against the plaintiff, which would tarnish the goodwill and reputation of the plaintiff and also to pay liquidated exemplary damages of Rs.1,00,000,000/- (Rupees One Crore only) for the loss of goodwill and reputation of the
plaintiff for publishing defamatory Articles in the monthly magazine M/s.Makkalukkana Neethi Engey and for costs of the suit.
2. The plaint in brief:
The plaintiff is a Nationalised Bank and in respect of the account of M/s.Ind Solders & Alloys Private Limited and M/s.Murugan Foundary Private Limited, Hindustan Plastics and Tools, the plaintiff Bank has initiated measures under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act), by invoking Section 13 of the said Act and brought the mortgage property to sale, following the procedure enumerated under the Security Interest Enforcement Rules, 2002. It is further submitted that the borrowers litigated upto the Hon'ble Supreme Court and were unsuccessful in all their attempts to prevent the Bank from recovering its legitimate dues.
3. The plaintiff would also submit that before the Hon'ble Supreme Court, a direction was issued to the borrower Company to deposit five crores in two installments which order also was not complied with. Even an attempt to prevent the sale of the property by auction, by filing a Writ Petition was unsuccessful and in fact, the Writ Petition was dismissed
with costs of Rs.50,000/-. At that juncture, the learned counsel for the Writ Petition requested permission to withdraw the writ petition and subsequently, the said Writ Petition was withdrawn.
4. The first defendant is the Editor-in-Chief and Publisher of the second defendant and alongwith defendants 3 and 5, they held dharna near the Collectorate Office which is adjacent to the building of the Head Office of the Plaintiff on 09.05.2011 and according to the plaintiff, the first defendant and few others came in person and submitted a representation dated 09.05.2011 to the plaintiff Bank, referring to a loan account of M/s.Hamosons (Haji Moosa Group) and projected as if the Bank proceeded against them in a prejudicial manner, citing their religious community. The first defendant also has informed the plaintiff Bank that he would self immolate himself, if the Bank proceeds with the auction in respect of M/s.Ind Solders & Alloys Private Limited on 12.05.2011. The plaintiff had lodged a police complaint and had obtained security for its Head Office and Asset Recovery Management Branch to prevent untoward incident.
5. The plaintiff further states that the first defendant, who is the Editor-in-Chief and Publisher of the 2nd defendant has been publishing
Articles in the Magazines and affixing posters in and around the City, especially in front of the Head Office making false and disparaging allegations and remarks against the plaintiff Bank and its officials. The first defendant also published Articles in the Magazine "Makkalukkana Neethi Engey" in the months of April and May, 2011 and the defendants were freely distributing these Magazines near the Bank premises only to malign and defame the good name and reputation of the plaintiff Bank.
6. According to the plaintiff, the articles are highly defamatory and derogatory and made against the Bank and its Officers and was likely to create panic amongst the public and was caused severe damage to the reputation and business of the Plaintiff Bank. The defendants 4 to 7 and 10 are persons who stood as guarantors to the loan accounts availed by the various borrowers who are mentioned in the articles published by the second defendant and the defendants 4 to 7 and 10 are personally in charge of the affairs of the borrowers and these defendants have formed third defendant Union, only for the purposes of tarnishing the image of the Bank and also prevent the Bank from recovering their dues by selling the properties of the Guarantors. In this backdrop, the plaintiff has sought for the relief of permanent injunction and damages.
7. The 6th defendant alone filed a written statement denying the plaintiff's allegations and stating that the allegations levelled against the 6th defendant were imaginary, concocted and without any basis and sought for dismissal of the suit. The Written statement was adopted by the defendants 3, 5 and 10. On 15.03.2024, the defendants 1, 2, 4 7, 8, 9 & 11 were set exparte by orders of this Court. On 06.10.2016, this Court framed the following issues:- " 1. Whether the plaintiff is entitled to permanent injunction as prayed for in the suit?
2. Whether the plaintiff is entitled to damages for loss of its reputation and goodwill?
3. Whether the plaintiff has discriminated the defendants 4 to 10 while taking recovery proceedings?
4. Whether the contents of May 2011 issue of Makkalukkana Neethi Engey, would amount to defamation?
5. To what other reliefs, the plaintiff is entitled to?"
8. Despite the matter being posted for trial and the plaintiff examining as P.W.1 and marking Exhibits P1 to P52, neither the 6th defendant who had filed written statement nor defendants 3, 5 and 10 who had adopted the said written statement came forward to cross examine P.W.1 and thereafter, the matter has been listed before this Court, for arguments.
9. The plaintiff has examined one Mrs.A.Manjula, Chief Manager of the Plaintiff Bank as P.W.1, through her proof affidavit, the plaintiff
has narrated the same set of averments and allegations that have been set out in the plaint. Ex.P1 to Ex.P52 have been marked on the side of the plaintiff.
10. In order to show that the defendants have attempted to tarnish the image of the plaintiff Bank, the plaintiff has filed the Police Complaints and also the Magazines published in April and May 2011 Editions. Admittedly, the borrowers have tried every possible way to avoid payment of dues and also the property being sold and the matter has also been taken upto the Hon'ble Supreme Court and it is seen from the various order copies that have been marked as Exhibits that the defendants have never obeyed the orders of this Court and in fact, the plaintiff Bank has taken all steps in accordance with law before bringing the properties of the borrowers to sale in public auction in order to recover their dues. The same is established through the various legal proceedings especially Exhibits P.2 to P.27, P.35 to P.37, P40 & P42.
In such circumstances, it was certainly not open to the defendants to indulge in making any derogatory/defamatory remarks against the Plaintiff Bank accusing them of illegality and high handedness. The plaintiff is therefore entitled to the relief of permanent injunction to restrain the defendant as prayed for.
11. Issue 1, is accordingly answered in favour of the plaintiff.
12. With regard to issue Nos.2 to 4, though the plaintiff has made a claim to the tune of Rs.1 crore for damages, I do not find any independent evidence brought on record to establish any damages suffered by the plaintiff on account of the defamatory statements published by the respondents in Ex.P50 to Ex.P52. Neither the plaintiff Bank, even from the plaint nor P.W.1 in her Chief Examination have been able to demonstrate as to how these defamatory statements by the defendants have resulted in losses being suffered by the Bank. There is nothing on record to show that the business of the Bank has come down because of such defamatory statements made by the defendants.
In order to succeed in a claim for damages, it is incumbent upon the plaintiff to prove damages or the fact of actually having suffered because of the defamatory statements made by the defendants. I do not find any evidence whatsoever substantiating the claim for damages, that too capped at Rs.1 crore. Therefore, the plaintiff has clearly failed to prove the claim of damages, much less to the tune of Rs.1 crore and the plaintiff is not entitled to succeed insofar as the claim for damages and issues 2 to 4 are accordingly answered.
13. In fine, the suit is partly decreed and the relief of permanent injunction is allowed as prayed for and insofar as the relief of damages, the suit is dismissed. No costs.
02.08.2024 Index : Yes/No Speaking/Non-speaking order rkp Witnesses examined on the side of the plaintiff: P.W.1. - Mrs.Manjula Exhibits produced on the side of the plaintiff: S.No. Exhibits Date Description 1.
P-1 -- Photocopy of the Power of Attorney.
2.
P-2 28.08.2004 Photocopy of the award passed in Lok Adalat in OA No.1881/2001 filed by the Plaintiff against 5th Defendant.
3.
P-3 14.10.2004 Photocopy of Order copy in OA No.1881/01 passed by Debt Recovery Tribunal II, Chennai filed by the Plaintiff against 5th Defendant P-4 24.02.2005 The photocopy of the Order copy in W.P.M.P.No. 7030 of 2005 in W.P No. 6447 of 2005 filed against the bank.
P-5 04.07.2005 The photocopy of the Order copy in W.P No. 17533 of 2005 filed by the 6th defendant against the bank.
P-6 02.08.2005 the photocopy of the Order copy in I.A No.64/2004 on O.A No.1371/01 passed by Debt Recovery Tribunal II, Chennai in the matter of M/s. Hamosons.
P-7 03.11.2005 The photocopy of the Order copy in Crl M.P No. 4372 of 2005 passed by the Chief
Metropolitan Magistrate in the matter of M/s. Hamosons.
P-8 12.07.2006 The photocopy of the Order copy in W. A.
No. 1715 of 2005 filed by the 6th defendant against the bank.
P-9 13.12.2006 The photocopy of the Order copy in W.P.No. 2886 to 2889 of 2006 in the matter of M/s. Hamosons.
P-10 16.11.2007 The photocopy of the Order copy in S.A No.37/2007 is passed by the Debt Recovery Tribunal I, Chennai in the matter of M/s.
Hamosons P-11 18.11.2008 The photocopy of the Order copy in W.P No. 3958 of 2007(Batch) in the matter of M/s. Hamosons.
P-12 29.06.2009 The photocopy of the Objections submitted to the demand notice under SARFAESI by counsel for M/s. Ind Solders Alloys Pvt Ltd.
P-13 10.07.2009 the photocopy Reply to the Objection submitted to the demand notice under SARFAESI by counsel for M/s. Ind Solders & Alloys Pvt Ltd P-14 03.11.2009 The photocopy of the Order copy in IN(SA) No.964/2007 passed Debt Recovery Appellate Tribunal, Mumbai in the matter of Shrin Iqbal P-15 03.11.2009 The photocopy of the Order copy in W.P No.22348 of 2009 in the matter of Shrin Iqbal P-16 06.11.2009 The photocopy of the Order copy in IN(SA) No.40/2008 passed Debt Recovery Appellate Tribunal Mumbai, in the matter of M/s.
Hamosons Apparels (P) Ltd P-17 30.12.2009 The photocopy of the Sale certificate issued by the bank in the matter of M/s. Hamosons Group P-18 04.03.2010 The photocopy of the Letter from 6th Defendant to Plaintiff under Right to information Act P-19 22.03.2010 The photocopy of the Reply by the Plaintiff to 6th Defendant P-20 20.04.2010 The photocopy of the Order Copy in W.P.No. 23328 of 2009 in the matter of M/s.
Hamosons Apparels Pvt Ltd
P-21 22.04.2010. The photocopy of the Letter from Advocate Commissioner to the Plaintiff Bank P-22 26.04.2010 The photocopy of the Order copy in W.P No. 8618 of 2010 in the matter of Mrs. Shrin Iqbal P-23 14.05.2010 The photocopy of the Order copy in AIR 964/2007 passed by Debt Recovery Appellate Tribunal Chennai filed against the Bank P-24 20.05.2010 The photocopy of the Order copy in S.A No. 19/2007 passed by the Debt Recovery Tribunal I Chennai filed against the bank P-25 31.08.2010 The photocopy of the Order copy in MA(SA) 125/2010 passed by the Debt Recovery Appellate Tribunal Chennai in the matter of M/s. Ind Solders & Alloys Pvt Ltd P-26 03.09.2010 The photocopy of the Order copy in RA(SA) 141/10 passed by Debt Recovery Appellate Tribunal Chennai in the matter of Mrs. Shrin Iqbal P-27 06.09.
2010 The photocopy of the Order copy in S.A No. 208/2010 passed by Debt Recovery Tribunal I Chennai P-28 07.10.2010 the photocopy of the Sale certificate issued by the bank in the matter of M/s. Ind Solders & Alloys Pvt Ltd P-29 20.10.2010 The photocopy of the Letter from the 10th Defendant to the Plaintiff P-30 26.10.2010 The photocopy of the Letter from the bank addressed to the 10th Defendant P-31 02.11.2010 The photocopy of the Telegram issued by the 10th defendant to the Plaintiff P-32 04.11.2010 The photocopy of the Sale certificate issued by the bank in the matter of M/s. Hindustan Plastic and Engineering Tools P-33 10.11.2010 The photocopy of the Letter from the 10th defendant to the Plaintiff P-34 16.11.2010 The photocopy of the Legal notice issued by the plaintiffs counsel to the 10th Defendant P-35 01.12.
2010 The photocopy of the Order copy in W.P No.23804 of 2010 in the matter of Shirin Iqbal P-36 07.12.
MA(SA) 652/2010 passed by Debt Recovery Appellate Tribunal, Chennai filed by the Plaintiff against 5th Defendant P-37 15.12.2010 The photocopy of the Order copy in CMP No. 1365/2010 passed by the Chief Judicial Magistrate, Thiruvallur filed by the bank P-38 23.12.2010 The photocopy of the Letter from the 10th defendant to the plaintiff P-39 28.12.2010 The photocopy of the Letter from the 10th defendant to the plaintiff P-40 12.01.2011 The photocopy of the Order copy in CRP (PD) No. 3186 of 2010 passed by Hon'ble High Court Madras in the matter of M/s. Ind Solders & Alloys Pvt Ltd P-41 04.02.2011 The photocopy of the Legal notice issued by the Plaintiffs in the matter of M/s. Hamosons and Hamosons Group of Companies P-42 22.02.2011 The photocopy of the Order copy in SLP (Civil) No.
5191 of 2011 passed by the Hon'ble Supreme Court of India P-43 21.04.2011 The photocopy of the Legal notice issued by the Plaintiffs in the matter of M/s. Hamosons and Hamosons Group of Companies P-44 30.04.2011 The photocopy of the Statement of accounts defaulting borrowers mentioned in the 2nd defendant P-45 04.05.2011 The photocopy of the Letter from 3rd defendant to plaintiff P-46 09.05.2011 The photocopy of the Mahazar of the 3rd Defendant P-47 10.05.2011 The photocopy of the Letter from Plaintiff to the Inspector of Police (Law & Order) B1 North Beach Police Station P-48 10.05.2011 The photocopy of the Letter from Plaintiff Bank to Commissioner of Police, Chennai P-49 10.05.
2011 the photocopy of the Letter from Plaintiff to Inspector of Police (Law & Order) Egmore Beach Police Station P-50 The original Extract from Makkalukkana Neethi Engey? 2nd Defendant for the month April 2011.
P-51 The original Makkalikkana Neethi Engey?
2nd Defendant for the month May 2011.
P-52 09.05.2011 the photocopy of the poster Witnesses examined on the side of the defendants: Nil.
Documents marked on the side of the defendants: Nil.
02.08.2024 rkp P.B.BALAJI,J.
rkp
Pre-delivery Judgment in C.S.No.378 of 2011 02.08.2024