Rakesh Bhardwaj v. Jai Gupta

1. Vide the present petition, the petitioner assails the impugned order dated 24.04.2018 of the ADJ-05, South, Saket, New Delhi in CS No. 9190/16 whereby an application under Order VII Rule 11 CPC filed by the applicant herein as defendant thereof was declined, it having been observed inter alia to the effect that for deciding the said application in the CS No. 9190/16, the plaintiff has specifically averred that the allegations made against him are defamatory per se. It was also observed vide the said impugned order that the plaint 2018:DHC:5130 disclosed a cause of action on the basis of contents therein and that it was to be proved by the defendant i.e. the applicant / petitioner during the trial that the plaint did not give rise to a cause of action and that the plaint could not be summarily rejected.

2. Copy of the petition that has been filed by the respondent to the present petition to whom so far no notice has been issued the said suit filed by the respondents to the present petition, arrayed as the plaintiff, to the suit in CS No. 9190/16 indicates that itself seeks damages of Rs.20 lakhs alongwith future interest @ 12% per annum apart from costs.

3. According to the averments made in the said plaint, the defendant i.e. the present petitioner herein was appointed as the President of an illegally formed / unregistered and sham RWA named “Sheikh Sarai, Phase-I, MIG Flats Owners Association” which was neither registered nor registered under the Societies Registration Act and was a non-entity.

4. The averments made in the plaint inter alia indicate disputes between the parties pursuant to which there was FIR No. 325/14 under Sections 506/509 of the Indian Penal Code, 1860 also registered against the plaintiff on the complaint made by the defendant i.e. the present petitioner herein to the effect that the same was on the basis of the concocted allegations made by the defendant to the said suit through a false and concocted complaint of a resident of the locality. The averments made in the plaint indicate vide para 17 thereof that subsequently a compromise agreement was executed on 19.01.2015 between the plaintiff, arrayed as the respondent to the present petition and the defendant i.e. the petitioner of the present petition and the other residents of the colony vide which the plaintiff had agreed to withdraw seven different cases filed by the plaintiff and had agreed to the withdrawal of the FIR No. 325/14 under Sections 506/509 of the Indian Penal Code, 1860 by the plaintiff. The said plaint however indicates that after the matter had been settled, the matter was referred to mediation and after the said matters were settled in mediation all the cases between the parties were withdrawn in the Trial Court in March- April, 2015 and thereafter a meeting was called on 08.02.2015 by the defendant i.e. the petitioner herein to which all residents of the colony were invited. The submissions made in the plaint however indicate to the effect that the plaintiff i.e. the respondent on the request of the residents of the colony had been deprived of Rs.1,000/- by the defendant on the pretext of collecting funds for regulatization of the unauthorized two room structure being used by the defendant as the office of the non-existent RWA on 27.07.2015 filed a complaint for extortion, cheating and intimidation against the defendant which was registered as DD No. 62B with the PS Malviya Nagar.

5. The complaint of the said suit i.e. the respondent to the present petition alongwith other office bearers of the registered RWA i.e. Sh. Joseph, Sh. Jai Gupta, Sh. Somnath Ramphal, Sh. Dilip Krishnan are stated to have received summons for appearance on 05.10.2015 in a proceedings u/s 107/150 Cr.P.C. from the Court of the ACP, South District, Vasant Vihar, New Delhi and that on appearing before the Court of the ACP, South District, the plaintiff of the said suit for the first time after having knowledge that the defendant had compromised and withdrawn all the cases in January, 2015 and had chosen to make seven handwritten complaints in his own handwriting to the SHO PS Malviya Nagar against the members of the new RWA including the plaintiff i.e. the respondent herein in which he had made specific defamatory accusations / imputations against the plaintiff with the criminal intent to further tarnish his character, image and reputation so as to defame him and that the said complaints had been made with the sole malafide intent to lower his image, reputation, standing and character in the eyes of the society at large and more particularly in the eyes of the residents of the colony in which the plaintiff has been residing since 1979 and the contents of the said complaints are depicted in the plaint by the plaintiff of the said suit, arrayed as the respondent to the present petition as paragraphs A to H to the effect: -

Sh. Vijay Singh Chandel, SHO PS Malviya Nagar, the Defendant furthrer wrote in his own handwriting on Page No. 1-2 that; “Shriman ji, uprukt Gamhir wishya mein aapko avgat karana hai ki uprukth vyaktiyon “Nirupama” Ve “Jai Gupta” ne mere ko, Rakesh Bhardwaj r/o 18-D, MIG, DDA Flats, Sheikh Sarai, Ph-I, N.D-110017 ko jo ki lagbhag 11 varshon (varsh 2004 se) sa uprukh varnit “Residents Welfare Association” kaa adhyaksh padh par Aasin ho kar samaj sawa karya mein rat hoon par Mali prakar se purvabhayas karte hue shadyantra gambhir roop se rachne ka sakriya prayas prarambh kar diya hai”. (Sir, in respect of the above subject I wish to inform Defendant that the above mentioned persons Nirupama Dutta and Jai Gupta have started seriously conspiring against me as I have been the President of the RWA for the last 11 years and have been involved in the welfare of the society).

05/06/2015 on page 3 the Defendant in order to further defame the Plaintiff wrote in his own handwriting that “Sath-Sath hi ukt Ashantikarak Vyaktiyon ka charitara ki bhi jaanch karviyee jaye” (That the character of the above said persons should also be investigated).

6. It has been submitted through the said plaint by the plaintiff of the said suit i.e. the respondent arrayed to the present petition that the said complaints which were seven handwritten complaints would be published in some judicial proceedings or the other and would on further publication certainly bring disrepute to the plaintiff and defame him.

7. It has been thus submitted on behalf of the present petitioner that the Kalandras u/s 107/150 Cr.P.C. having been filed in relation to the said complaints filed by the respondent, are yet to be adjudicated upon and thus it cannot be held that there were defamatory remarks made in the said complaint.

8. Reliance has also been placed on behalf of the petitioner on a catena of verdicts to contend that the application under Order VII Rule 11 CPC ought to have been allowed by the Trial Court and reliance in relation thereto has been placed on behalf of the petitioner on the verdict of the High Court of Bombay at Goa in Second Appeal No. 07 of 2005 decided on 23.05.2012 titled as Shri Laxman Jairam Malvankar Major, resident of Narva, Bicholim Goa, Indian National, Occupation – Service Vs. Smt. Reshma Ramesh Narvekar of major age, resident of Narva, Bicholim, Goa and Editor “Tarun Bharat” Daily having its office at Belgaum – Karnataka, on the verdict of the Hon’ble Supreme Court in Crl. A. No. 637/1995 decided on 11.02.1999 titled as Rajendra Kumar Sitaram Pandey & Etc. Vs. Uttam & Another AIR 1999 SC 1028, on the verdict of the High Court of Karnataka in Second Appeal No. 334 of 1971 decided on 02.12.1974 titled as V. Narayana Bhat Vs. E. Subhanna Bhat AIR 1975 Kant 162, to contend that the statement made to police officer in the complaint was absolutely privileged and did not amount defamation.

9. Reliance was also placed on behalf of the petitioner on the verdict of this Court in CM (M) 687/2017 decided on 10.07.2017 titled as Mahadev I. Todale Vs. Frankfinn Aviation Services Pvt. Ltd. and Ors. 242 (2107) DLT 273, to contend that merely on the basis of the complaint made allegedly by the petitioner herein to the SHO concerned, no cause of action accrued to file a suit against the petitioner herein by the plaintiff of the said suit i.e. the respondent to the present petition on the ground of malicious prosecution.

10. It is essential to observe that the verdict relied upon on behalf of the petitioner in Shri Laxman Jairam Malvankar Major, resident of Narva, Bicholim Goa, Indian National, Occupation – Service Vs. Smt. Reshma Ramesh Narvekar of major age, resident of Narva, Bicholim, Goa and Editor “Tarun Bharat” Daily having its office at Belgaum – Karnataka (supra) is on the basis of the evidence led between the parties and qua the premise that for consideration of the application under Order VII Rule 11 CPC it is the contents of the plaint are those which are to be looked into by the Court.