Introduction

The story revolves around an industrialist ( Khrishnaraj M.D. Thackersey) of

Bombay who alleges to have been defamed in his character, credit and
reputation by a journalist ( Rustom K. Karanjia) who published an article in the
English Weekly Blitz in its issue of 24th September 1960. The plaintiff further
claimed that mere intention of the defendant was to maliciously harm the said
renowned industrialist by publishing unauthentic false statements of being
associated in questionable and unlawful methods of accumulating wealth. This
led to a favourable decision for the plaintiff in lower court as the learned judge
negatived all the defences produced by the defendant and decreed the full claim
of damages worth Rs. 3,00,000 along with permanent injunction.

But the case does not end here...lets find out what happens in High Court when
the said defendant filed a suit against the decision of lower court.
Case brief:-
Plaintiff, a prominent businessman and industrialist of Bombay filed a
defamation suit on the original side of this court in respect of an article
published in the English Weekly Blitz in its issue of 24 th September 1960. He
sought to recover Rs.3,00,000/- as general damages and prayed for an
injunction. He claimed that the article which was separately exhibited as Exhibit
6 was grossly defamatory of him and alleged that the allegations and
imputations made in that article along with the several innuendoes set out in
detail were false and malicious, and as a result of the same, the plaintiff was
injured in his character, credit, reputation and in the way of his business and had
been brought into the public hatred, contempt and ridicule.

But the defence council argued that the article was defamatory was not seriously
disputed and the principal offences offered were Justification, Fair comment on
a number of public interest, qualified privilege and that the damages claimed
were excessive and disproportionate.

The trial court held that the plaintiff had been grossly defamed by that article
and punitive damages were awardable in this case, decreed the full claim of
damages of Rs. 3,00,000/- with costs.

But the dissatisfied defendant filed a further appeal against original verdict in
High Court. Here the Learned council for appellants did not press their appeal
against the previous findings on the pleas of justification and fair judgement
but confined their arguments to the plea of qualified privilege and pressed the
plea that the damages awarded to the plaintiff were excessively
disproportionate and unreasonable.

According to the appellant, the several allegations made in the article were
merely incidental and subsidiary as the article was not an attack on the personal
or private character of the plaintiff rather was directed against the business
organisation namely House of Thackersey consisting principally of the
plaintiff, his brothers, their wives, and close relations and friends, who built up
a vast empire of wealth by having recourse to unlawful and questionable means.
This financial empire was set up by upcoming factories and firms with a view to
wangle fabulous licenses for unlawfully importing art-silk yarn. Enormous
profits were made in these transactions which were concealed by financial
jugglery which empowered the House of Thackersey to evade income tax
which with penalty, was computed at Rs.4.66 crores. The case had passed
through the Finance Ministry during the regimes of three successive Finance
Ministers, still the government did not succeed in collecting the amount.

These objects of the article submitted by Mr. Chari (appelants exponent)

depicts that the subject matter of the article was of great public interest.
Therefore, Mr. Chari contends that this gave the newspaper Blitz a
privileged occasion, that is, an occasion giving rise to a duty on the part of the
newspaper to address a communication to its readers. Hence, any defamatory
matter incidental to the subject-matter of the communication was protected by
law unless express malice was proved by the plaintiff.

Contrarily, plaintiffs advocate , Mr. Murzban Mistry contented that a privileged

occasion can not be created by a person to enable him to publish a defamatory
statement without undertaking an obligation to justify it. During the proceedings
of the court of this case and with evidences produced, it was nowhere felt the
need of recognising any such duty towards the journalist as he, like any other
citizen, has the right to comment fairly and if necessary severely on a matter of
public interest, provided the allegations of facts he had made are accurate and
truthful, however defamatory they may be otherwise. Therefore, the plea of
privileged occasion fails.
He further argued that even if qualified privilege was assumed in favour of the
defendants, he was able to show that the attack on his client was malicious.

In this connection, he first referred to the episode of 31st May 1947 when
defendant printed and published an Article in the Blitz under bold headings:

Cloth Control Boss in Black Market Swoop Thackersey Mills were

involved in Bombays Biggest Black racket Swoop; Anti Corruption
Branch follows Blitz clues Phoney Cloth Control Proved by latest Black
Market Swoop; Textile Control Boss, too, in Thick of it

And alleged that certain bales of cotton cloth were found in a godown by the
police which were the product of certain Mills under the agency of Mr. the
plaintiff. Since the plaintiff was not responsible for the destination of these
bales after the Mills had sold the same in accordance with the control order, he,
served a notice on 16th June 1947 requiring defendant to publish a full and
unqualified apology in his newspaper in a prominent manner with the approval
of plaintiffs attorneys.
After this notice, defendant published in the issue of 21st June 1947 stating that
only the cloth manufactured by those mills had been seized in the black-market
raid and that the Mill owners and the Mills concerning were no way engaged
in or guilty of black market operations. This explanation apparently did not
satisfy the plaintiff. So, he filed a criminal complaint in the Court of the Chief
Presidency Magistrate for defamation. It is this case after which defendant
completely surrendered himself to the mercy of the plaintiff and entreated the
plaintiff to accept an unconditional and unqualified apology for having
wrongfully published the said statement and article in the Blitz. On such
apology being accepted by the plaintiff, defendant no.1 was discharged.

Plaintiff further alleged that this episode rankled in the mind of defendant and
when in 1960 some material was brought to him, the defendant no.1 took
advantage of that opportunity to write the Article in suit maliciously.

The written statements of journalist show that he never surrendered himself to

the mercy of the plaintiff nor had he entreated the plaintiff to accept an
unconditional and unqualified apology. Rather the reason for the apology was
that the defendant no.1 was at that time going abroad for an important mission,
and he had to obtain his freedom by apologizing. He had applied to the
Magistrate to postpone the hearing of the case, but since his application was
opposed by the plaintiff he accepted the suggestion made by the Magistrate that
it would be desirable that he should go a little further the first explanation and
hence he published the second explanation in the way required by the plaintiff.
So the matter of apology was not getting satisfied of the truth but for other
considerations.

As a matter of fact, the very alacrity with defendant no. 1 decided to publish a
series of articles on the plaintiff would go to show that the episode of 1947 had
not been forgotten by him. His mind was up to expose the plaintiff.

All this shows that the reason for writing this article was not mere public
interest. Having, therefore given careful consideration to the article and the
aspect of malice put before by the learned council for the plaintiff, it was
satisfactory that the whole article was conceived in express malice and
therefore, no qualified privilege can at all be claimed.

Hence, in the result, the appeal was partially allowed, the decree of the trial
Court was confirmed with the only modification that for the amount of
Rs.3,00,000/-, Rs.1,50,000/-were substituted.
JUDGEMENT GIVEN BY- JUSTICE PALEKAR

Facts of the case :-

1.Plaintiff , is a prominent businessman and industrialist of Bombay.

At the time of the suit, he was a partner in a firm which had been carrying
on the business of Managing Agents of four textile mills.
He was a Director of the Bank of India and of several other well-known
companies.
He was also the Chairman of the Textile Control Board which has been
set up by the government during the last world war.
He was also the Chairman of the Indian Cotton Mills Federation.

2.Plaintiff, respondent no. 1, filed a defamation suit on the original side of this
court in respect of an article published in the English Weekly Blitz in its
issue of 24th September 1960. He sought to recover Rs.3,00,000/- as general
damages and prayed for an injunction.

3.There are four defendants in this case namely-

Defendant no.1 is the editor of Blitz and has accepted responsibility for
the article referred to here.
Defendant no.2 is a Private Limited Company which owns the
newspaper.
Defendant no.3 is original defendant with whom we are no longer
concerned , was the printer of the issue of the Blitz but since at an early
stage of the suit he tendered an apology, the plaintiff withdrew his suit
against him.
Defendant no.4 joined subsequently in the suit as a joint tort-feasor since
it was principally upon material furnished by him and with his agreement
that the article was published in Blitz.

Claims of plaintiff:-
1. The article, aforesaid, which is separately exhibited as Exhibit 6 was grossly
defamatory of him.

2. Plaintiff alleged that the allegations and imputations made in that article
along with the several innuendoes set out in detail in the plaint were false and
malicious, and as a result of the same , the plaintiff was injured in his character,
credit, reputation and in the way of his business and had been brought into the
public hatred, contempt and ridicule.

So he alleged, he had suffered damages which he assessed at Rs.3,00,000.

As the article itself further showed that defendants contemplated
publishing a series of similar articles, the plaintiff further asked for a
permanent injunction.

Defences offered by defendant:-

1. The article was defamatory was not seriously disputed.

2. The principal offences offered were

i. Justification
ii. Fair comment on a number of public interest
iii. Qualified privilege

3. It was also contended that the damages claimed were excessive and
disproportionate.

Verdict of trial:-
After a trial for 101 days, in which most of the evidence were produced by the
defendant and not by the plaintiff, the learned judge negatived the three
defences referred to here and holding that the plaintiff had been grossly
defamed by that article and punitive damages were awardable in this case,
decreed the full claim of damages of Rs.3,00,000/- with costs.

Issues of the case:-

It is from this decree of lower court that the present appeal has been filed by
defendants 1 and 2.

Learned council for appellants did not press their appeal against the finding of
the learned judge on the pleas of justification and fair judgement but confined
their arguments to the plea of qualified privilege and pressed the plea that the
damages awarded to the plaintiff were excessively disproportionate and
unreasonable.

The defence of qualified privilege is set out in written statement as follows:-

Without prejudice to the aforesaid contentions of the defendants and in the

alternative these defendants say that the said Article appearing in the issue of
the Blitz dated 24th September 1960 is protected as being on an occasion of
qualified privilege in which the defendants honestly and without any indirect or
improper motive and for general welfare of society published the said Article as
it was the duty as Journalists to do and believing the allegations contained in the
said Article to be true.

Defendants arguments:-
Mr. Chari(on behalf of defendant) in his address assured that he would stick to
this defence as set out in the written statement. To prove this, several arguments
were put forth by him :

The article is not an attack on the personal or private character of the

plaintiff. The attack is directed against the business organisation namely
House of Thackersey consisting principally of the plaintiff, his
brothers, their wives, and close relations and friends, built up a vast
empire of wealth by having recourse to unlawful and questionable means,
involving tax evasion on a colossal scale, financial jugglery, import-
export-rackets, and customs and foreign-exchange violations.
He wanted to suggest that owing to conditions prevailing at the time and
owing to enormous power and prestige wielded by the plaintiff,
investigations into the operation of the House got hampered for years
leaving the House of Thackersey free to acquire great wealth.

According to Mr. Chari, the several allegations made in the article are
merely incidental and subsidiary and fall squarely in the general pattern of
the two purposes mentioned above.
 The main part of the article mentioned that the business in the House
of Thackersey was on the brink of disaster in 1938 but it got a boost
like any other business in the early war years when the government
employed plaintiff as the Chairman of Textile Control Board which
enabled him to further the interest of his satellite concerns and to exert
pressure to smoother investigations made with regard to the
Thackersey House. This financial empire was set up by upcoming
factories and firms with a view to wangle fabulous licenses for
unlawfully importing art-silk yarn. Enormous profits were made in
these transactions which were concealed by financial jugglery which
empowered the House of Thackersey to evade income tax which
with penalty, was computed at Rs.4.66 crores. The case had passed
through the Finance Ministry during the regimes of three successive
Finance Ministers, still the government did not succeed in collecting
the amount.
These objects of the article submitted by Mr. Chari depicts that the
subject matter of the article was of great public interest. The public
are vitally interested in being assured that great concentration of
wealth which is discouraged by clause (b) and (c) of Art. 39 of the
constitution does not take place, and if it does either because of
Government inaction or because of deliberate violation of the law on
the part of any business organisation, the public have a legitimate
interest to know about it. If again owing to corruption, inefficiency or
neglect on the part of the state investigating machinery offenders are
not speedily brought to book would also be a matter of great public
interest .

Therefore, Mr. Chari contends that this gave the newspaper Blitz a
privileged occasion, that is, an occasion giving rise to a duty on the part of
the newspaper to address a communication to its readers . Hence, any
defamatory matter incidental to the subject-matter of the communication was
protected by law unless express malice was proved by the plaintiff.

Plaintiffs arguments:-
Contrarily, on behalf of plaintiff, respondent no.1, Mr. Murzban Mistry
contented that a privileged occasion can not be created by a person to enable
him to publish a defamatory statement without undertaking an obligation to
 justify it. During the proceedings of the court of this case and with evidences
produced, it was nowhere felt the need of recognising any such duty towards
the journalist as he, like any other citizen, has the right to comment fairly
and if necessary severely on a matter of public interest, provided the
allegations of facts he had made are accurate and truthful, however
defamatory they may be otherwise. Therefore, the plea of privileged
occasion fails.

Mr. Mistry on behalf of respondent no.1 further argued that even if qualified
privilege was assumed in favour of the defendants, he was able to show that
the attack on his client was malicious.

Such malice can be proved in a number of ways, inter alia

I. By showing that the writer did not honestly believe in the truth of these
allegations, or that he believed the same be false
II. That the writer is move by hatred or dislike or a desire to injure the
subject of the libel and is merely using the privileged occasion to defame
III. By showing that out of anger, prejudice or wrong motive, the writer casts
aspersions on other people recklessly whether they are true or false.

In this connection, he first refers to the episode of 1947 set out in the plaint
itself. It appears that on 31st May 1947 defendant no. 1 printed and published
an Article in the Blitz under bold headings:

1) Cloth Control Boss in Black Market Swoop Thackersey Mills

were involved in Bombays Biggest Black racket Swoop;
2) Anti Corruption Branch follows Blitz clues Phoney Cloth
Control Proved by latest Black Market Swoop;
3) textile Control Boss, too, in Thick of it

And alleged that certain bales of cotton cloth were found in a certain godown in
a rail by the police and these bales were the product of Crown, Hindustan and
Great Western Mills which are under the agency of Mr. Krishnaraj Thackersey
(the plaintiff) the chairman of Textile Control Board. Since the plaintiff was not
responsible for the destination of these bales after the Mills had sold the same in
accordance with the control order, he, through his solicitors served a notice on
16th June 1947 requiring defendant no.1 to publish a full and unqualified
apology in his newspaper in a prominent manner with the approval of plaintiffs
attorneys.
 o After receipt of this notice, defendant no.1 published in the issue of 21st
June 1947 stating that only the cloth manufactured by those mills had
been seized in the black-market raid and that the Mill owners and the
Mills concerning were no way engaged in or guilty of black market
operations. This explanation apparently did not satisfy the plaintiff.
o So,he filed a criminal complaint in the Court of the Chief Presidency
Magistrate for defamation. It is this case after which defendant no.1
completely surrendered himself to the mercy of the plaintiff and entreated
the plaintiff to accept an unconditional and unqualified apology for
having wrongfully published the said statement and article in the Blitz.
On such apology being accepted by the plaintiff, defendant no.1 was
discharged.
o Plaintiff alleged that this episode rankled in the mind of defendant no.141
and when in 1960 some material was brought to him by defendant no.4,
the defendant n.1 took advantage of that opportunity to write the Article
in suit maliciously.

Proceedings of court:-
Mr. Chari submitted that more than 13 years had elapsed after his episode of
1947 and that it was more natural for defendant no.1 to treat the episode as
closed after the apology than to entertain any grudge against the plaintiff.

On behalf of plaintiff, Mr. Charis plea was overruled as the written

statements of journalist show that he never surrendered himself to the mercy of
the plaintiff nor had he entreated the plaintiff to accept an unconditional and
unqualified apology. Rather the reason for the apology was that the defendant
no.1 was at that time going abroad for an important mission, and he had to
obtain his freedom by apologizing. He had applied to the Magistrate to postpone
the hearing of the case, but since his application was opposed by the plaintiff he
accepted the suggestion made by the Magistrate that it would be desirable that
he should go a little further the first explanation and hence he published the
second explanation in the way required by the plaintiff. So the matter of
apology was not getting satisfied of the truth but for other considerations.

The defendant further stated in his evidence :

 From the complaint which I received prior to reading the Article in the
Peep I felt that the plaintiff was engaged in black-marketing, tax evasion and
trying to influence government officials by underhand means that is to say
corrupting government officials. ... The information which led to me to believe
that he was concerned with tax evasion and corrupting officials was received by
me thereafter and before 1960... From 1947 I had heard of serious complaints
being made to the then Bombay Government by one Dosh and by others about
the misuse by the plaintiff of his position as Chairman of the Textile Control
Board...

As a matter of fact, the very alacrity with defendant no. 1 decided to publish a
series of articles on the plaintiff would go to show that the episode of 1947 had
not been forgotten by him. His mind was up to expose the plaintiff.

All this shows that the reason for writing this article was not mere public
interest. Therefore although Mr. Chari has tried to put the case on a high level
viz that whole article was written with a view to serve public interests, it was
found that the writer himself did not intend to do so.

Having, therefore given careful consideration to the article and the aspect of
malice put before by the learned council for the plaintiff, it is satisfactory that
the whole article was conceived in express malice and therefore, no qualified
privilege can at all be claimed.

Judgement:-
In the result, the appeal is partially allowed, the decree of the trial Court is
confirmed with the only modification that for the amount of Rs.3,00,000/-,
Rs.1,50,000/- will be substituted.