1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTIC OF MOTION NO.2601 OF 2006 IN SUIT NO. 2084 OF 2006 M/s. Orbit Constructions & Pvt. Ltd. & Ors. ...Plaintiffs Vs. Mahmood M.H.Chunawala ...Defendant Ms. N.S. Nappinai with Ms. Jayshree Manjrekar for Plaintiffs Ms. Manorama Mohanty i/b. S.K. Srivastava & Co., for Defendant CORAM: SMT.ROSHAN DALVI, J. DATED: 10 THJUNE, 2009 P.C. 1. This Notice of Motion is for injunction restraining the Defendant from circulating, publishing or stating defamatory allegations similar to the ones contained in his letter Exhibit-E to the plaint in a manner defamatory of the Plaintiff s character and for an order directing the Defendant to apologize and withdraw the allegations made by him in the said letter. 2 2. The Plaintiffs are developers. They have entered into an agreement for sale with regard to a property, Noorie Castle. The Defendant had also entered into a similar agreement with the same person earlier. The Defendant was earlier granted NOC by MHADA for redevelopment of the said property. The Plaintiffs later were granted a similar NOC. The Defendant wrote a letter to MHADA, Exhibit-E to the plaint setting out why the NOC should not be granted to the Plaintiffs. The Plaintiffs claim that that letter is defamatory. Based upon the letter the Plaintiffs NOC was stayed. The Plaintiffs Counsel now states upon instructions from the Plaintiffs that the allegations in the Defendant s letter have been inquired into by the police. The Plaintiffs NOC is restored. This suit as well as the Notice of Motion are not concerned with the grant or the refusal of the NOC. 3. In the Notice of Motion one citizen of the country seeks to restrain another citizen from making the representations on the premise that that would be defamatory. Allegations which may be untrue or which may slain a character would be 3 defamatory. Whether or not allegations in the letter Exhibit-E to the plaint are defamatory or not, can be decided only upon trial. The Plaintiffs have not sought any injunction in respect of the letter Exhibit-E. The Plaintiffs contention for injunction is in respect of future letters similar to Exhibit-E to the plaint. 4. Counsel on behalf of the Plaintiffs argued that from a reading of the letter it should be seen primafacie that a case of defamation is made out. I have gone through the letter. The letter is in respect of proposed reconstruction/redevelopment of the building, Noorie Castle, involvement of an accused in a criminal case with other absconding accused in the case for an offence under Sections 3 and 4 of the Maharashtra Control of Organised Crime Act, 1999 (MCOCA), forfeiting and attachment of the property belonging to the absconding accused under Section 20 of the said Act and restraint by BMC and MHADA in granting approval and NOC for the construction. The subject of the letter is not with regard to the character of the Plaintiffs. 4 5. The allegations made in the various paras of the letter require to be read to consider whether or not they, even primafacie, constitute defamation. They may be enumerated as follows: (a) The contents of the first 4 pages of the letter show the case of the infamous Abu Salem who was reported from from Portugal to India to face trial in cases of offences under the MCOCA. The Plaintiffs Counsel fairly conceded that the first 4 pages of the letter from pages 50 to the half portion of page 55 of the plaint do not pertain to the Plaintiffs and the Plaintiffs have no concern with what is mentioned therein. (b) The latter part of page 55 of the letter shows the transaction of the Plaintiffs. It claims knowledge of the Plaintiffs that the property had certain connections with organised crime. The other statements in the said para relate to a Broker with whom also the Plaintiffs are not concerned. What is objected by the Plaintiffs is the statement that they were interested in pushing the deal though they were aware of an accused in the MCOC case, who was on the run , and that they 5 wanted to grab the property by way of distress sale. The factum of the transaction they have been entered into is not disputed. Whether or not, it would be a distress sale and whether or not, the deal was pushed through can be seen through appropriate procedure during evidence. ( c )The next para of the letter shows the fact of consideration paid. The amount of consideration is not mentioned. The fact that consideration would have to be paid in an agreement for sale cannot be disputed. (d) Further allegations are with regard to certain hawala agents, hawala deals and hawala payments. The MCOCA itself takes cognizance of such transactions under the said Act itself. Such tainted transactions would come under scrutiny. Upon such scrutiny the transactions of properties may result in attachment and forfeiture. (e) Further allegations in the letter show that the 6 Plaintiffs through unlawful means caused pecuniary benefits to themselves. Such averments would be made even in a suit for injunction. It would be subject to proof at the time of trial. (f) A further statement in the letter is that the Plaintiffs have committed an organised crime defined under Section 2(c) of the MCOCA and punishable under Section 3 of the said Act. That is a submission of law. (g) The Plaintiffs Counsel concedes that further 2 pages of the letter do not concern the Plaintiffs. (h) The statements in further paragraphs show that the Plaintiffs are taking recourse to the illegal and unlawful means and generating ill-gotten wealth from the project of development of Noorie Castle. This is usual allegation even in a suit for injunction with regard to a transaction which is sought to be set aside. 7 (i) Further allegations in the letter relate to a common practice stated by the Defendant as per his knowledge about a dummy list of tenants prepared to prevent part of the property which would otherwise have to be surrendered to MHADA. This is a common and normally practiced mode by several developers which allegation would be subject to proof at the time of trial. (j) A further allegation is that some tenants have been bought out by payment in cash or by cheque by Plaintiffs. This is the usual mode of settlement with tenants. (k) A further allegation is that the scheme of the Plaintiffs is based on fraud, misrepresentation and forgery. These are the usual allegations in a suit requiring an agreement to be set aside and cancelled. (l) A further allegation is that the Plaintiffs 8 have committed an offence of preparation of false documents and forged the documents for the purposes of using them to meet the conditions of NOC issued by MHADA. These are the contents of Sections 463 and 464 of the I.P.C. An allegation making out a case which would constitute the offences of forgery and making a false document would be considered at the stage of trial. (m) A further allegation is that the Plaintiffs are flaunting their relations with the office of MHADA and claim that they can have anything and everything done in that office by throwing money around and greasing the palms of the officers of MHADA . It further states that the claim of offering gratification to the officers of MHADA is an offence under the Prevention of Corruption Act. Whereas the first of these sentences is metaphorically used, the next sentence is a submission of law. (n) Last 2 pages of the letter do not concern the Plaintiffs and the Plaintiffs have no objection to 9 that. 6. A reading of the letter shows that the Defendant has made certain allegations with regard to the transactions entered into by the Plaintiffs. The Defendant has sought to have the NOC granted by MHADA revoked on the basis of such allegations. The allegations may or may not be substantiated. It would be for MHADA to inquire into the allegations and grant or refuse NOC to the Plaintiffs. 7. The Plaintiffs would be entitled to make out a case for grant of the NOC. The Plaintiffs cannot instead obtain an order commonly referred to even in precedents as a gagging order against another citizen restraining any citizen from making allegations that he might choose to make in a Democracy. Such an order would militate against the fundamental right of speech and expression which is inherently a human right. Ofcourse, if the allegations are proved to be defamatory in the trial in this suit recourse to law upon such a tort would be available to the Plaintiffs. 8. It is argued on behalf of the Plaintiffs that because the Plaintiffs as well as the Defendant 10 were both interested in the same transaction the Defendant made egregious allegations to defame the Plaintiffs. 9. The Defendant is stated to be the previous Constituted Attorney of the same person against whom he has made allegations of having committed an organized crime under the MCOCA. The Defendant also was granted the NOC for the same project. The Defendant s act may be motivated. MHADA would consider that fact in granting or refusing the NOC to the Plaintiffs. In fact that would have been considered by MHADA, if the instructions given to the Plaintiffs Counsel and stated to Court about the inquiry being conducted are correct. Indeed MHADA has granted NOC to the Plaintiffs. 10. The Plaintiffs Counsel referred to Judgment of the Single Judge of this Court in the case of Shree Maheshwar Hydel Power Corporation Ltd. Vs. Chitroopa Palit & another 2004(2) B.C.R.137 in which upon considering the English and Indian cases relating to the extent of the right of expression which would border on apprehended defamation was considered. That judgment has been challenged in SLP filed in the Supreme Court and is pending. 11 Hence, reliance upon that judgment is misplaced. 11. No case for the grant of injunction of the nature applied for is made out. Hence, Notice of Motion is dismissed. No order as to costs. (SMT. ROSHAN DALVI, J.)