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TMI Blog2024 (3) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... e business of media and entertainment. As submitted Article in question is not only ex-facie defamatory but also suffers from inherent contradictions. The headline of the said Article is deceptive which in no manner is in consonance with the contents mentioned in the body of the Article. The headline is an eyecatcher and the Article is against the spirit of journalistic conduct. SEBI has not released any so called finding, which bear any connection to the purported $ 241 million diversion of funds. The Article has not only implicated the respondents as being guilty of the diversion of illegal funds but has also taken the liberty to fix the quantum of such a fictitious amount. It was submitted that a malicious story has been cooked to intentionally tarnish the reputation public image of the respondent and there is 15% drop in the share price of the respondent. HELD THAT:- The position of law is well settled with respect to the scope of interference by an appellate Court in an interlocutory injunction granted by the Court of first instance while exercising its discretion and substituting its own discretion. It is settled law that unless there is a grave urgency shown as to entertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties are at liberty to approach the Court of learned ADJ for an early hearing. It is clarified that the appellants to comply with the directions of learned ADJ vide order dated 01.03.2024 within three days from today. - HON BLE MS. JUSTICE SHALINDER KAUR For the Appellants Through: Mr. Rajiv Nayar and Mr. Jayant Mehta, Sr. Advs. with Mr. Shiv Sapra, Mr. Samiron Borkataky, Mr. Rajat Gava, Mr. Ikshvaaku Marwah and Ms. Sanskriti Shrimali, Advs. For the Respondent Through: Mr. Vijay Aggarwal, Sr. Adv with Mr. Naman Joshi, Mr. Tarun Singla, Mr. Sidhu, Mr. Aayushi Bansal, Mr. Raddharaman Rajoria, Advs. JUDGMENT 1. The present appeal under Order XLIII Rule 1(r) read with Section 151 of the Code of Civil Procedure, 1908 has been preferred against the order 01.03.2024 passed by the Learned Additional District Judge-05, South District, Saket Courts, New Delhi (hereinafter referred to as ADJ ) in CS DJ 137/2024 titled as Zee Entertainment Enterprises Ltd. Vs Bloomberg Television Production Services India Pvt. Ltd. Ors. whereby an ex-parte ad-interim injunction in an application filed by the respondent under Order XXXIX Rule 1 2 of the Code of Civil Procedure was granted, resultantly directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sought the following relief: A. decree of declaration that the contents of the Defamatory Article [as defined hereinabove] authored by Defendant Nos. 3-5 and published by Defendant Nos. 1 and 2 as stated in the present Suit are defamatory to the Plaintiff; B. A decree of permanent injunction against the Defendants to remove the Defamatory Article [as defined hereinabove] from their Website [as defined hereinabove]; C. A decree of permanent injunction restraining the Defendants and / or their associates, affiliates, servants, agents, directors, partners, employees, representatives, and all other persons acting for and on their behalf from uploading/ distributing/ sharing and/ or circulating the Defamatory Articles in any manner whatsoever; D. A decree of permanent injunction restraining the Defendant Nos. 1 to 5 from making any further unverified, unsubstantiated, and ex facie defamatory statements in any form, i.e., an article, video, tweet or otherwise, concerning the Plaintiff or repeating and republishing the Defamatory Article; E. A decree for mandatory injunction directing the Defendant Nos. 1 to 5 to publish a written unconditional apology on their website as this Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding any key managerial position in any listed companies or their subsidiaries. Plaintiff, however, was not issued any notice by the SEBI in the said proceedings and the article has been published seeking to link the order with the plaintiff. It is further alleged that the said orders were appealed before the Securities Appellate Tribunal by the said KMP and individual promoter and the KMP has been awarded interim relief on 30.10.2023. It is claimed that the article makes several unsubstantiated claims and also makes a claim that SEBI had unearthed large financial bungling, when no such finding has been disclosed by the SEBI. At the same time, the article itself claim that the information has been received from the people familiar with the matter who did not want to be identified as the information is not public yet. 8. I have noticed that in Dr. Abhishek Manu Singhvi (Supra), Chandra Kochar (Supra), Swami Ramdev (Supra), ex-parte ad interim injunction was passed, considering that the contents of the material in question was per se defamatory. 7. It is further observed that: 9. In my view, the plaintiff has made out a prima facie case for passing ad interim ex-parte orders of injun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants submit that the present suit is an example of a slapp suit intending to intimidate and silence the appellants by burdening them with the cost of litigation until the appellants abandon their right to free and fair speech. The Learned ADJ did not give the appellants an opportunity to place before it several other Articles published prior in time to show that the appellants were not the only voice in the matter and appellants were denied a right to establish that the Article was backed by material which forms a part of Articles previously published by other media companies. Reliance is placed on Ms Crop Care Federation of India vs. Rajasthan Patrika (Pvt) Ltd. Ors CS (OS) 531 of 2005 date of Decision: 27.11.2009. Therefore, the impugned order defies that any publication based on public records becomes unobjectionable. Reliance is placed on the judgment in the matter of R. Rajagopal vs. State of TN 1994 6 SCC 632. 13. The learned Senior Counsel further submits that a perusal of the Article in question would reveal that the contents are a matter of fact and not opinion. Further, it is stated that the said Article cannot be taken down as the entity that controls the uploading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecourse under Order XXXIX Rule 4 of the Code of Civil Procedure. Submissions of the Respondent: 17. Negating the submission addressed on behalf of appellants, Mr. Vijay Aggarwal, learned Senior Counsel submitted that the contention of the appellants that the impugned order suffers from lack of reason and application of judicial mind is incorrect. The learned ADJ has specifically stated in paragraph 7 of the impugned order that he has gone through the record as available on date . Therefore, it cannot be said that the impugned orders suffers from lack of reason and application of judicial mind as the learned ADJ had found the Article per se defamatory. Reliance is placed on Acharya Arjun Dev vs State Anr 2005 (2) JCC 897, Kanti Bhadra Shah And Another Vs State of W.B (2000) 1 SCC 722. Further, the defense of fair comment and truth taken up by the appellants is impermissible as material supporting these contentions could have been placed before the learned ADJ. 18. Learned Senior Counsel submits that the Article in question is not only ex-facie defamatory but also suffers from inherent contradictions. The headline of the said Article is deceptive which in no manner is in consonance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further places reliance on the judgment in Swami Ramdev vs. Juggernaut Books in CM(M) 556/2018 dated 29.09.2018 as well as the order dated 10.05.2018. The order in the Special Leave Appeal dated 23.07.2018 and 30.11.2018 have been perused as well. Reliance is also placed on HT Media Limited vs Kairaviview (OPC) Pvt. Ltd. Ors (supra), Sahara India Real Estate Corpn Ltd. Vs SEBI (2012) 10 SCC 603, Naveen Jindal vs M/s Zee Media Corporation Ltd. Anr (2015) 29 DLT, Sidhartha Vashisht vs State (NCT of Delhi) (2010) 6 SCC 1, Vinai Kumar Saxena vs Aam Aadmi Party Ors in CS(OS) 593/2022, Smriti Zubin Irani Vs Pawan Khera Ors in CS(OS) 436/2022, Praful Patel vs Indian Express in CS No. 803/19, Ishrat Masroor Qudussi Vs. Foundation for Independent Journalism in CS no. 184/18, Rana Kapoor Vs. Penguin Random House India Pvt Ltd. Ors in CS 581/2021, Dr. Abhishek Manu Singhvi v/s Sarosh Zaiwalla ors in CS No. 191/2020, the order dated 16.05.2020 in Jindal Steel Power Ltd. Anr. Vs. Arun Kumar Jagatramka Ors , the order dated 08.04.2019 in Super Cassettes Private Limited Vs Felix Arvid Ulf Kjellberg Ors , the order dated 27.08.2015 in Tata Sky Ltd Vs Youtube LLC Ors and Pepsico India Holdings Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the support of appellants no. 4 5) has continuously been running a smear campaign against the respondent by publishing numerous reports against it, which reportedly purport to be based upon unverified information provided by people privy to such internal matters, which are not in public domain yet. 27. It was also asserted by the respondent that SEBI is conducting an investigation in its position as a market regulator and has not released any so called findings whatsoever, which bear any connection or to the purported $ 241 million diversion of funds by the respondent. The allegation of defamation was based upon the assertion that under an interim order dated 12.06.2023 and confirmatory order dated 14.06.2023 issued by SEBI against one individual promoter and one KMP of the respondent company. The said KMP and individual promoter were directed to relieve themselves from holding any key managerial position in any listed companies or their subsidiaries. However, the appellants no. 3 to 5 have intentionally omitted to mention that respondent / plaintiff is not even a noticee to the SEBI order. Further the KMP, an individual promoter appealed the SEBI order before the Securities Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph [(1960) 3 SCR 713 : AIR 1960 SC 1156] : (SCR 721) ... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton Co. v. Jhanaton [1942 AC 130] ...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case . The appellate judgment does not seem to defer to this principle. 30. It is further to be noted that in the case of Babu Ram Dharam Prakash vs Izuk Chemical Works (Supra), the Apex Court referred to the judgment in Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel, (2006) 8 SCC 726 and emphasised on the principles to be followed by the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve. 7. We are of the view that the Plaintiff had made out a prima facie case for the grant of an injunction against the Defendant for the use of the trademark super Star. It has been contended that the word star has been freely used in the market. The precise inquiry would have to be whether the use of the word star has been adopted in respect of the products manufactured and marketed by the Plaintiff, that is, Hair Dye. It is of no relevance or advantage to the Defendant that the product in question is Herbal Heena. This product is widely used as a Hair Dye, although it may also have ameliorative effect on hair. The use of the pictorial device of a star compounds and demonstrates the intention of the Defendant to deceive a customer into buying its product, believing it to be that of the Plaintiff. The views and findings expressed by us herein should not affect or influence the passing of the final judgment of the case. However, based on Ramdev, even if we were of a different opinion, we would be loath to interfere in this Appeal since the view taken by the learned Single Judge is a plausible one and is not perverse or illegal. 31. The appellants being aggrieved with the ex-parte a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Wander Ltd Anr vs Antox India Pvt. Ltd. (Supra) that it will not be appropriate for the Appellate Court to substitute its own discretion differently from the discretion exercised by the Court of first jurisdiction. 35. Though, the learned Senior Counsel for the appellants has heavily relied upon the judgment of the learned Division Bench in the case of Pushp Sharma vs Db Corp Limited Ors (Supra), it is seen that this judgment is distinguishable for the reason that in that case, the plaintiff was seeking pre-publication injunction which is not the scenario here. Similarly, in the case of B.L. And Co. And Others vs. Pfizer Products Incl (Supra) and Tata Sons vs. Greenpeace Ors. (Supra), the reasons for interference by the Appellate Court were on the facts specific to those in the aforementioned cases. 36. As would be evident from the impugned order, the learned ADJ has clearly taken into consideration relevant factors for the purpose of grant of ex-parte ad-interim injunction. Further, there is no final adjudication on the subject matter of the suit which is at the very threshold. The learned ADJ is yet to hear the Appellants and dispose of the interim application. 37. Insofa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt would have by passed the three protective humps which the legislature has provided for the safety of the person against whom the order was passed without affording him an opportunity to have a say in the matter. First is that the court is obliged to give him notice before passing the order. It is only by way of a very exceptional contingency that the court is empowered to bypass the said protective measure. Second is the statutory obligation cast on the court to pass final orders on the application within the period of thirty days. Here also it is only in very exceptional cases that the court can bypass such a rule in which cases the legislature mandates on the court to have adequate reasons for such bypassing and to record those reasons in writing. If that hump is also bypassed by the court it is difficult to hold that the party affected by the order should necessarily be the sole sufferer. 21. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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