Rajiv Sahai Endlaw, J.
IA No. 9343/2007 (of all the three defendants under section 10 of the cpc).
1. The counsel for the defendants states that the costs imposed on 28th November, 2016 shall be paid in the course of the day.
2. The counsel for the defendants/applicants states that the appeal preferred against the order dated 3rd August, 2016 dismissing the application of the defendants under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) is coming up before the Division Bench in February, 2017 and the hearing of this application be deferred awaiting the outcome of the appeal.
3. The senior counsel for the plaintiffs opposes, drawing attention to the order dated 28 November, 2016 where it has already been observed that without an order of stay of proceedings before this Bench, the pendency of the appeal cannot be a ground for adjournment, to keep this suit of the year 2004 alive.
4. I am today also of the view that pendency of the appeal would have no bearing on the hearing of this application. Rather, after hearing the counsels it appears that the Division Bench at the time of hearing of the appeal against the order of dismissal of application under Order VII Rule 11 of the CPC, should also have before it the order on this application.
5. The counsels have been heard.
6. The three plaintiffs namely ITC Hotels Limited (since merged with ITC Limited), International Travel House Limited, and Fortune Park Hotels Ltd. have instituted this suit against ABP Private Limited, Shri Aveek Sarkar and Shri Bijit Kumar Basu for recovery of damages/compensation for defamation and for a direction to the defendants to withdraw the allegedly defamatory article from their website www.telegraphindia.com and for permanent injunction to restrain the defendants from re-producing the said article.
7. Though issues were framed in the suit as far back as on 2nd March, 2012 but I am told that no evidence has been led in the suit till now.
8. The defendants/applicants seek stay of proceedings in this suit under section 10 of the cpc, and on which issue no. (vi) with onus on the defendants has also been struck, on the ground of Mr. Yogesh Chander Deveshwar and ITC Limited, prior to the institution of this suit, having instituted a suit in the High Court of Calcutta against the same three defendants as in this suit, for recovery of damages/compensation for defamation from the same news article appearing in the newspaper ‘The Telegraph’ published by the defendants on 10 April, 2004 and for permanent injunction restraining the defendants from publishing any other article defaming the plaintiffs therein.
9. The counsel for the defendants/applicants has argued (i) that the allegedly defamatory article was with respect to the conduct of Mr. Yogesh Chander Deveshwar in his capacity as the Chairman of Indian Institute of Management, Calcutta (I.I.M.C); (ii) that though it was the contention of the defendants in the application under Order VII Rule 11 of the CPC which was dismissed vide order dated 3 August, 2016 that the plaintiffs cannot have a cause of action for defamation from an article relating to Mr. Yogesh Chander Deveshwar but the said contention was rejected by this Bench and appeal whereagainst is pending before the Division Bench; (iii) that Mr. Yogesh Chander Deveshwar being himself the plaintiff in the suit before the Calcutta High Court, if the Calcutta suit is dismissed, this suit has to be necessarily dismissed and cannot survive; (iv) that though the three plaintiffs have also instituted this suit on the cause of action of being part of the ITC Group of which Mr. Yogesh Chander Deveshwar was the Chairman but, though at the time of institution of this suit the three plaintiffs were different legal entities from the plaintiffs in the Calcutta suit but during the pendency of the suits plaintiff no. 1 herein ITC Hotels Ltd. has merged with ITC Limited which is the plaintiff no. 2 in the Calcutta suit and thus now the plaintiff no. 1 in this suit and the plaintiff no. 2 in the Calcutta suit are the same; (v) a comparison of the plaint in the Calcutta suit and before this Court would show that the pleadings in both suits are substantially identical; (vi) and the plaintiffs in this suit are also claiming through Mr. Yogesh Chander Deveshwar who is himself the plaintiff in the Calcutta suit.
10. Reliance has been placed on (i) National Institute of Mental Health & Neuro Sciences v. C. Parameshwara (2005) 2 SCC 256; (ii) C.L Tandon v. Prem Pal Singh Rawat AIR 1978 Del 221; (iii) Sagar Shamsher Jung Bahadur Rana v. Union of India AIR 1979 Del 118; (iv) M/S. Arjies Aluminim Udyog… v. Sudhir Batra, New Delhi…. AIR 1997 Del 232; and, (v) Mehta Gandhi & Associates v. Shree Pipes Ltd. ILR 1989 Del 94 to contend (a) that the object of Section 10 is to prevent the courts from simultaneously trying two parallel suits/trials and to avoid recording of conflicting findings; (b) that there need not be identity of issues; and, (c) that the words “matter in issue” do not mean entire subject matter must be the same but mean that all disputed material questions in the subsequent suit should be directly and substantially in issue in the previous suit.
11. On enquiry, it is informed that issues have not been struck in the Calcutta suit as yet.
12. I have in the order dated 3 August, 2016 of dismissal of the application of the defendant under Order VII Rule 11 of the CPC observed/held that a perusal of the amended plaint in this suit shows the plea of the plaintiffs to be that due to long association and involvement of Yogesh Chander Deveshwar with the plaintiff companies, the defamation of Yogesh Chander Deveshwar is defamation of the plaintiffs as well and that the question whether a corporate entity can be so closely associated with an individual so as to suffer any loss/damages on account of defamation, even if not of the said corporate entity but of the said individual, is a question of fact which cannot be decided at the stage of Order VII Rule 11 of the CPC. Of course the said observation/finding is the subject matter of pending appeal.
13. The counsel for the defendants/applicants having argued that if Mr. Yogesh Chander Deveshwar fails in the Calcutta suit, this suit would also have to be dismissed, I have enquired from the counsel for the defendants/applicants whether the same would be true in converse also i.e if the Calcutta suit is decreed, whether a decree would follow in this suit also.
14. The counsel for the defendants/applicants states that a decree would not follow in this suit inasmuch as the question of whether the defamation of Mr. Yogesh Chander Deveshwar found in Calcutta suit amounts to defamation of the plaintiffs herein also and if so, what should be the quantum of damages and other reliefs which the plaintiffs are entitled to, will have to be put to trial in the present suit.
15. I have yet further enquired from the counsel for the defendants/applicants as to what is the principle for applicability of section 10 of the cpc; whether section 10 can be held to apply only when the decision of previously instituted suit in one way would constitute res judicata in subsequent suit or whether the condition for its applicability is that decision in the earlier suit, whatever it may be, would be res judicata qua the subsequent suit.
16. The counsel for the defendants/applicants states that though the latter proposition may be correct but in the peculiar facts of this case, without the said condition being satisfied also there should be a stay of proceedings in this suit awaiting the outcome of the Calcutta suit; if not under section 10 of the cpc, then under section 151 of the cpc. It is argued that else, the purpose of section 10 of cpc would be defeated.
17. Per contra, the senior counsel for the plaintiffs has argued (i) that the scheme of amalgamation of ITC Hotels Limited plaintiff no. 1 in the suit as originally filed, with ITC Limited being the plaintiff no. 2 in the suit at Calcutta, provided for ITC Limited to be entitled to continue the proceedings by or against ITC Hotels Limited; (ii) that ITC Limited is now pursuing this suit on the cause of action which had accrued to ITC Hotels Limited and which cause of action has not disappeared on the amalgamation of ITC Hotels Limited with ITC Limited and that if on the date of institution ITC Hotels Limited was entitled to sue independently from ITC Limited, that cause of action would survive the merger; (iii) that the plaintiffs no. 1, 2 & 3 in the present suit thus continue to be different entities and have filed this suit asserting their independent rights; (iv) that a defamatory act can give rise to multifarious causes of action and each party claiming to be defamed can assert its independent right; (v) that for invocation of section 10 of the cpc it is essential that the finding in the previously instituted suit shall constitute res judicata and once it will not constitute res judicata, the question of application of Section 10 does not arise; (vi) section 151 of the cpc cannot be invoked once a provision for stay of proceedings has been made under section 10 of the cpc.
18. The senior counsel for the plaintiffs, besides distinguishing the judgments cited by the counsel for the defendants/applicants, has also referred to Booth v. Briscoe 1877 QBD 496 to support that there can be separate causes of action from a tort and each of the persons claiming can take separate action, and order dated 17 November, 2009 of the Supreme Court in Special Leave Petition (Civil) No. 7997/2008 titled MKJ Developers Ltd. v. Greenacre Holdings Ltd. to canvass that for applicability of Section 10 it is essential that the parties to the two actions are same. It is argued that in the present case Section 10 cannot be invoked as the parties to the two suits are different.
19. I have considered the aforesaid contentions and also perused the written submission on record of both the counsels on the said application.
20. The allegedly defamatory article, though in the context of Mr. Yogesh Chander Deveshwar in his capacity as the Chairman of I.I.M.C having toed the line of the Government to cut the fee of I.I.M.C, describes Mr. Yogesh Chander Deveshwar as ITC Chairman and also attributes motives for the action of Mr. Yogesh Chander Deveshwar in his capacity as Chairman of I.I.M.C to toe the line of the Government, to serve the diverse interests ranging from tobacco and garments to packaging and information technology in which ITC is engaged. The article also refers to the actions of Mr. Yogesh Chander Deveshwar as Manager of ITC Hotels Ltd's Usha Kiran Palace Hotel, Gwalior owned by Mr. Madhavrao Scindia and to the role played by Mr. Yogesh Chander Deveshwar in the wedding reception of Mr. Scindia's daughter in the said hotel. The article also refers to the earlier Chairman of ITC and the role played by Mr. Yogesh Chander Deveshwar in his removal, to grab the throne of ITC with the help of Indian financial institutions.
21. I am of the view that for applicability of Section 10 it is essential that the decision in the previously instituted proceedings, whichever way, should constitute a res judicata in the latter proceedings so as to obviate the need for the latter to proceed further. Supreme Court in National Institute of Mental Health & Neuro Sciences v. C. Parameshwara (2005) 2 SCC 256 held that the fundamental test to attract Section 10 is, whether at final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. It was held that Section 10 applies only in cases where whole of the subject matter in both suits is identical. The key words in Section 10 were held to be “the matter in issue is directly and substantially in issue” in the previously instituted suit. It was held that the words used are “directly and substantially in issue” as distinct from “incidentally or collaterally in issue”. Section 10 was held to apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject matter in both the proceedings is identical. Again, in ASPI Jal v. Khushroo Rustom Dadyburjor (2013) 4 SCC 333 this view was reiterated.
22. Even if it were to be believed, as contended by the counsel for the defendants/applicants, that the dismissal of the suit at Calcutta necessarily has to result in the dismissal of the present suit, the same would still not attract Section 10 inasmuch as the counsel for the defendants/applicants is unable to agree that a decree as sought in the Calcutta suit would automatically be a decree as sought in the preset suit. It is not as if the decree in the present suit would not follow, according to the counsel for the defendants/applicants, only owing to quantum of damages if any awarded to be recoverable to be determined. The counsel for the defendants/applicants does not want to give up the other defences raised to the suit on which issues have been framed. Once that is so, the question of the decision of the Calcutta suit, even if be of dismissal of that suit, cannot be a ground for staying further proceedings in the present suit.
23. I also entertain doubt whether the dismissal of the Calcutta suit would ipso facto amount to dismissal of the present suit. The said argument of the counsel for the defendants/applicants is premised on the dismissal being on the ground of the article being not defamatory. Dismissal of a suit can be for diverse reasons and merely because disposal of the suit in one particular manner may amount to res judicata in a subsequent suit cannot, in my opinion, be a ground for invoking Section 10.
24. As far as the invocation of inherent powers of the Court under section 151 of the cpc are concerned, though the Courts have time and again held (See Durgesh Sharma v. Jayshree. (2008) 9 SCC 648 and Ram Prakash Agarwal v. Gopi Krishan (2013) 11 SCC 296) that inherent powers cannot be invoked vis-a-vis matters for which specific provision has been made in the Code but even if the inherent powers were to be invoked, I am not satisfied that a case for grant of stay of proceedings is made out. The Court cannot on equitable consideration stand in the way of the plaintiff who has approached the Court, from proceeding to prove his case. Law permits the same only when the conditions prescribed in Section 10 are satisfied. The Court, in my opinion, would be unjustified in staying a proceeding brought before it, on the ground that the disposal of a previously instituted proceeding in one of the several ways in which it may be disposed may bring to an end the proceeding; in such a situation, in the event of the previously instituted proceeding being disposed of in some other manner, the proceeding would have to continue and the Court would have no way to compensate the plaintiff whose proceedings have been so stayed, for the delay thereby caused to such plaintiff in agitating his rights in a Court of law.
25. I therefore do not find any merit in the application.
26. Dismissed.
CS(OS) No. 575/2004.
27. Though the stage for filing of list of documents is long past gone but by way of indulgence, both plaintiffs and the defendants are permitted to file their additional documents if any and list of witnesses on or before 31st January, 2017. If this opportunity is not availed, the right shall stand closed and no application therefor shall be entertained.
28. Option of having the evidence recorded before the Court Commissioner has been given but has not been accepted by both the counsels.
29. The plaintiffs to file affidavits by way of examination-in-chief of all their witnesses on or before 6 March, 2017.
30. List before the Joint Registrar on 8 March, 2017 for fixing the dates of trial.