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A prominent builder filed a civil suit against my activist colleague Krish for publishing articles against the builder. Here's what Krish says about the suit:

Last weekend, I was served notice of a Civil Suit filed against myself and one more person (Mr Vineet Malik) by Ekta Parksville Homes Pvt. Ltd, ("Plaintiff"). In this present article, I intend to analyze the infirmities of (a) the civil suit no 36 of 2017 in Vasai Civil Court, (b) the temporary injunction passed by this court against me, and (c) the gag order sought against me under "Order 39 Rule 2A of CPC".
I believe that no law prevents me -- as a journalist, a citizen and a defendant -- from publicly analyzing the legal merits of a suit filed against me, and the legal merits of a temporary injunction that seeks to muzzle me without giving me notice and an opportunity to be heard. Not only is my Right To Freedom of Speech protected by the Constitution, but also, my Fundamental Duties urge me "to develop the scientific temper, humanism and the spirit of inquiry and reform".
I consider it my duty as a journalist and a citizen to be rigid and unyielding on such points of principle. Hence, I have analysed the civil suit here:
Analysis of Ekta Builder's Civil Suit Against Me

8th May, 2017: Last week, I was served with notice of a Civil Suit filed against myself and one more person (Mr Vineet Malik) by Ekta Parksville Homes Pvt. Ltd, ("Plaintiff"). This civil suit filed in Vasai Civil Court attempts to gain the court's sympathy by mixing up several unrelated matters, and wrongly invokes the court's territorial jurisdiction to pass temporary injunction against Mr Malik ("Defendent no. 1") and myself ("Defendant no. 2"), in order to suppress certain truths about Ekta's way of doing business from becoming known to a wider public.
In this present article, I intend to analyze the infirmities of (a) the civil suit no 36 of 2017 in Vasai Civil Court, (b) the temporary injunction passed by this court against me, and (c) the gag order sought against me under "Order 39 Rule 2A of CPC". I sincerely believe that no law prevents me -- as a journalist, a citizen and a defendant -- from publicly analyzing the legal merits of a suit filed against me, and the legal merits of a temporary injunction that seeks to muzzle me without giving me notice and an opportunity to be heard. Not only is my Right To Freedom of Speech protected by the Constitution, but also, my Fundamental Duties urge me "to develop the scientific temper, humanism and the spirit of inquiry and reform". I consider it my duty as a journalist and a citizen to be rigid and unyielding on such points of principle.
Click here to read the CIVIL SUIT NOTICE sent to me by Ekta builders and later, the court bailiff.
One may ask why I am named as defendant no. 2 in this suit which is primarily between a builder and a flat purchaser. The short answer is: because I wrote the below articles about this particular flat-purchase deal, published them on my blog and also issued them as press releases:
(a) Ekta Builder: Broken Promises & Bhai-giri
(b) Delayed Ekta Parksville: Builder offers full refund plus 9% interest but...
In the words of the plaintiff, according to paragraph no. 54 (page 25) of the civil suit, "the cause of action to file this suit arose for the first time when Plaintiff on 3rd December, 2016 accepted the offer of Defendant No. 1 to terminate the Agreement dated 30/05/2016..., secondly it arose when the Defendant No. 1 failed to accept the refund amount and to execute and register a Deed of cancellation of Agreement... It arose thirdly on _________ when the Defendants published defamatory article for the first time, and lastly on _________ when the Defendants again published 2nd defamatory article. It is continuous cause of action..."
DETAILED ANALYSIS OF THIS SUIT & ORDER:
  1. As you can see from this Causelist, this civil suit is filed under Specific Relief Act 1963, Section 34 and 38. A plain reading of this Act and the relevant sections shows that the only purpose of this Act is the enforcement of contractual obligations. As a journalist writing articles, I have no contractual obligations to the builder ("plaintiff") who has filed this suit. The plaintiff has a contractual dispute with Mr Vineet Malik, and the subject of the dispute is the "suit flat". On page 3 of the civil suit , under the head, "Description of suit property", what is mentioned is "Flat bearing No. 1104 admeasuring approximately 35.60 square metres... in the phase known as Brooklyn Park in the complex known as Ekta Parksville... hereinafter referred to as the "suit flat")". Hence, there is no justification for my inclusion in this suit under the Specific Relief Act, as I have nothing to do with the suit flat, which is the subject of the said suit. I am wrongly and malafidely named in this civil suit. My inclusion is a misjoinder.
  2. Ekta builder ("The Plaintiff") states in paragraph no. 43 that he is "entitled to claim compensation and damages from the Defendants... The plaintiff has suffered monetary loss to the extent of Rs One Hundred Crore... as a result of false and negative public campaign undertaken by the Defendant No. 2 at the behest and in connivance with the Defendant no. 1". If this is so, then Ekta builder is required to provide some proof as to why my writings are "false" and also how he has calculated this grand figure of Rs 100 crore. However, the builder provides no coherent arguments or proofs to substantiate his claims, but he prays for the sweeping reliefs that the court should "Hold and declare that the Defendants have defamed the Plaintiff" (paragraph e on page 27), and seeks a permanent injunction restraining me from publishing anything about any of the Ekta concerns (paragraph h on page 28), besides of course, my paying him damages of Rs 100 crore jointly and collectively with Mr Malik.
  3. Nearly two months BEFORE this notice was served to me, the plaintiff's advocate Avinash Vidwans informed me by email that "Sir, The Hon'ble Civil Judge (S.D.) at Vasai was pleased to pass following Order in Special Civil Suit No. 36 of 2017 , wherein you are Defendant No. 2.: ORDER Heard Ld. Adv. Mr. Vidwans for Plaintiff.  Ld. Adv. Ms. Sheetal Pandya appears for Def.No.1 in pursuance of email notice sent to her by the Plaintiff.  She has placed on record an undertaking at Exh.10 to not to publish any defamatory material against the Plaintiff till next date. Ld. Advocate for Plaintiff has relied upon certain e-mails sent by Defendant No.2 in reply to Plaintiff’s mail thereby indicating that the Defendant No.2 will regardless of any matter sub-judice proceed to publish two alleged stories against the Plaintiff.  It is argued that the Defendant No.2 has made up his mind against the Plaintiff in a prejudiced and biased manner.  The e-mails are self-speaking.  Hence, it is deemed fit to temporarily restrain the Defendant No.2 from making any such publication which may contain any defamatory material against the Plaintiff till next date or till he appears on the next regular scheduled date. The Plaintiff has made out an urgency and hence it is desirable that the triable issue be set at rest through the intervention of the Court. Plaintiff to communicate the Order to Defendant No.2 and also to effect service of suit summons upon him, if not done earlier."
    Here are my views regarding the legality of the above quoted order: 
    (a) Freedom of Speech and the freedom of Press cannot be so lightly trampled by a mere Civil Judge. My legal commonsense says that every Civil Court cannot enjoy the necessary jurisdiction to pass such such a weighty order, which is a blanket gag nullifying a fundamental right. Only the High Court can have such a jurisdiction.
    (b) Even assuming Vasai Civil Court has the necessary territorial jurisdiction, such an order cannot be passed so lightly, without serving proper notice and without giving defendants an opportunity to be heard. Such a weighty order cannot be passed based on printouts of emails produced by the plaintiff, without even seeking to verify from me whether it is true or not!
    (c) The suit has been filed, but it has not yet been admitted by the court. It cannot be automatically admitted, without seeking answers to crucial questions about where exactly the dispute and the cause of action arose, determining the territorial jurisdiction of the court, etc. Not even a single proper hearing has happened for establishing the jurisdiction of this court, and whether the parties named in it are correctly imp-leaded. If a gag order can be passed at such a preliminary stage by a Civil Judge, then the mass media and social media throughout the country can be brought to a grinding halt by every Tom, Dick and Harry seeking such temporary injunctions.
    (d) If journalists start getting muzzled so lightly with so little due process, then it will cause grievous injury to our nation, as all kinds of blanket muzzling orders will be sought by wrongdoers. For me, journalism is a calling, a way of life, and not just a way of earning my daily bread. I cannot, in good conscience, bring myself to obey such an badly-formed judicial order.
  4. This suit that Ekta has filed is not a defamation suit; it is a mixed-up and confused suit. This suit is under the "Specific Relief Act" for performance of contractual duties, and it does not argue even one point as to why my writings are defamatory; it only relies on the bland assertion that whatever I have written is defamatory and derogatory. I would invite the builder to file a proper defamation suit against me, wherein the exact material that I have published would have to be closely examined in court. Let us stop being vague and get into the particulars of my so-called defamation. In a civil defamation suit, I would be given ample opportunity to prove that each and every one of my statements is true and based on facts and documents, and also that my writings are intended to warn and protect the public against exploitation by a builder. I want to be given that opportunity.
  5. Non-applicability of Plaintiff's Application under Order 39 Rule 2A of CPC to my case: Let us understand what is this Order 39 Rule 2A of Civil Procedure Code. Cases in which temporary injunction may be granted.
    "1.Where in any suit it is proved by affidavit or otherwise-
    (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
    (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to [defrauding] his creditors,
    [(c) that the defendant threatens to dispossess, the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit,]
    the Court may be order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property [or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit] as the Court thinks fit, until the disposal of the suit or until further orders."

    In short, temporary Injunction under Order 39 Rule 2A of CPC is for protecting contractual obligations or interests in a suit relating to a disputed property. Can this rule be invoked for muzzling a journalist who has no contractual ties with the plaintiff? I seriously doubt it.

    WHY THIS SUIT IS MALA-FIDE:

  • This civil suit is a hotchpotch of three distinct kinds of civil suits that cannot be mixed.  This civil suit attempts to blur the clear lines between a suit for: (a) enforcement of a contract between two parties (b) resolving a dispute (c) seeking damages for defamation  and resultant loss of business, and seeking legal protection from further defamation.
  • This civil suit creates a false narrative that a huge complicated contractual relationship exists between Mr Malik and Ekta.The fact of the matter is, their contractual relationship is simple -- that of a flat-purchaser with a builder who failed to honour his contractual obligation to give timely possession of a flat in Virar, complete with Occupation Certificate.  Everything else is just hot air.
  • The suit seeks to divert attention from the fact that the terms of cancellation offered by the builder were rejected by Mr Malik, and, as the original Flat Purchase Agreement has yet not been cancelled, this agreement is the only one that is enforceable by law, and the builder is in breach of it. This civil suit tries to abuse the court mechanism to force Mr Malik, virtually at gun-point, to accept the builder's terms for cancellation of the flat-purchase agreement, by which he is currently bound.
  • Although this is a suit filed under Specific Relief Act, the plaintiff (Ekta) does not specifically name any existing contract that he wants enforced through the court. Ekta implies several obligations of the defendants to himself, without actually specifying which contract confers such obligationss. The current civil suit is therefore, in a nutshell, malafide, frivolous, vexatious and deserving of being dismissed at the admission stage itself, with costs if possible.
Can writing and publishing this present article be considered as Contempt of Court – whether Civil or Criminal? Can it be considered defamatory? Can it be considered a violation of the temporary injunction of the Civil Court? I would very much like the builder to present this before the Hon'ble Civil Judge, and I would invite the learned Judge to apply his judicial mind to every word of this article. If the Hon'ble Civil Court, in its great wisdom, feels that this constitutes Defamation, Contempt etc., I will be quite happy to stand trial for it.
DISCLAIMER: I am writing this as an independent journalist and blogger, on my own behalf. I am NOT upholding Mr Vineet Malik's case, and I don't care what stand he or his defense lawyers choose to take. I haven't earned a paisa from Mr Malik, and I have no personal interest in his business dealings with Ekta or anyone else. Nor do I have any personal enmity and ill-will towards Ekta builders. At the core of this present article is my burning curiosity to find out whether freedom of speech is really protected in our beloved country, or whether such protection is lightly cast aside by frivolous civil suits and temporary injunctions without so much as a notice, let alone a hearing.
ISSUED IN PUBLIC INTEREST
Krishnaraj Rao

9821588114
krish.kkphoto@gmail.com

 
POSTED IN PUBLIC INTEREST
Sulaiman Bhimani
9323642081

Mumbai, 14th March, 2017: Today, I received an email that was sent on behalf of Ekta World Pvt Ltd that worried me for a few minutes -- yeah, but only for a few minutes before I clearly saw that this crooked builder was bluffing and intimidating once again.

(Background: Ekta World has a troubled relationship with truthfulness and factuality. A couple of days back, the builder tried to scare freelance journalist Raju Vernekar that a matter was "subjudice" and that he would file a defamation suit against him also. That tactic backfired; instead of preventing Vernekar from publishing his story, it actually triggered him to publish this story in Afternoon Despatch & Courier! More about this incident in my blog here.)

Today, while at work, I received the following email: 

"From: Avinash Vidwans <avinashvidwans@gmail.com>
Date: Tue, Mar 14, 2017 at 4:36 PM
Subject: Hearing of Application for interim and ad-interim relief in Special Civil Suit No. 36 of 2017 in the Court of C.J.(S.D.) at Vasai.
To: vernekar.raj@gmail.com, member@linkedin.com, krish.kkphoto@gmail.com, vineetmalik1@yahoo.co.in
Cc: deepti.n@ektaworld.com

Respected Sir / Madam,
Please find herewith attached copy of an Application for interim and ad-interim injunction to be moved against you Mr. Vineet Malik and Krishna Raj Rao in the Court of C.J.(S.D.) at Vasai on 15th day of March, 2017 at 11.00 am or so soon thereafter, on behalf of my client M/S Ekta Parksville Homes Pvt.Ltd.
Please take notice that, you may remain present if you so desire at the above mentioned time and date and venue.
Thanking you,
Yours faithfully
Avinash Vidwans, Advocate."

Attached to this email was this word file. The fun contents of this file are dissected and analyzed in my blog here. (For the sake of continuity, I am forced to separate these, but please don't miss reading it, because the bluffs contained in that document are really hilarious!)

Anyway, after my first reaction subsided, I wrote this email in reply:

From: Krishnaraj Rao <krish.kkphoto@gmail.com>
Date: Tue, Mar 14, 2017 at 6:41 PM
Subject: Re: Hearing of Application for interim and ad-interim relief in Special Civil Suit No. 36 of 2017 in the Court of C.J.(S.D.) at Vasai.
To: Avinash Vidwans <avinashvidwans@gmail.com>
Cc: Raju Vernekar <vernekar.raj@gmail.com>, member@linkedin.com, Vineet Malik <vineetmalik1@yahoo.co.in>, Deepti Nair <deepti.n@ektaworld.com>, Gopal Mehta <advocategcm@gmail.com>, "Adv. Abdul Rasheed Qureshi" <i.rasheed1357@gmail.com>, Ashok Mohnani <ashok.m@ektaworld.com>

Dear Mr Avinash Vidwans,

1) I have been given no reason to believe that you are an advocate, or that you have been duly appointed by Ekta Builders to represent them. You have not even sent a copy of your vakalatnama signed by Mr Ashok Mohnani. Kindly furnish adequate proofs immediately.

2) Further, I have been given no reason to believe that the word file that you have sent to me is the authentic and true copy of the "Special Civil Suit" that you claim is being filed at Vasai Court. Hence, it cannot be considered to be Notice served to me. Kindly serve notice immediately in a way that will be legally acceptable and verifiable, i.e. hard copy or scanned copy of stamped and registered "Special Civil Suit".

3) Please note further that you have deliberately and malafidely served this notice without giving adequate notice of 48 hours to enable us to respond. You have sent me this unsigned word file with barely 16 hours of notice, the previous evening. Hence, your foregoing email cannot be considered to be proper service of notice under any circumstances.

4) Please note further that Vasai Court is in no way the proper jurisdiction for filing of your case. Just because you have a project at Virar does not mean that you can file at Vasai. You also have a project at Nashik; that does not give the Nashik court proper jurisdiction over your case. As your client's registered office is at Bandra, the court with proper jurisdiction will also within Mumbai jurisdiction. Hence, for want of proper jurisdiction, your court injunction, if filed, will be without proper jurisdiction, and will give me cause to seek proper reliefs against you for abuse of the judicial process.

5) Moreover, as there is currently no court injunction of any nature against my writings, please note that I will be publishing two stories about your double-dealings and fraudulent dealings with your customers before 3 am tomorrow morning. Since they are based solidly on documentary proofs that are in public domain, and are in public interest, there is no need for me to seek rebuttal from your client.

I wish your clients good luck in their attempts to restrain us from exposing their cheating and fraud. And when the proper occasion arises, I look forward to seeing your clients in court. Please be forewarned, I will spare no efforts to expose your clients' fraudulent dealings, and I shall widely report the outcome of each and every court proceeding in future. That is not a threat, but a solemn promise.

For the record: I am acting on my own behalf as a freelance journalist. Mr Vineet Malik and other clients of Ekta World are my sources of information. I have not received a paisa of remuneration from these persons, nor do I intend to at any time in the future.

Please feel free to produce this email as proof before any forum, judicial or otherwise.

Best Wishes,
Krishnaraj Rao

-------------------

After writing this email, I decided to put into public domain all that I had to say about the dealings of Ekta World before the next morning (Wednesday, 15th March), by when the Civil Judge may be induced to give an arbitrary order muzzling me.

But then, my activist colleague Sulaiman Bhimani checked the causelist and found that there is no hearing scheduled tomorrow (i.e. 15th March, 2017). As per the below causelist, the next hearing date is 18th April 2017, and the case status is "Awaiting Summons". We are not needed to attend the hearingtomorrow, because there is no hearing!

So, Ekta World is bluffing as usual. The date given in the lawyer's email is a lie. The question is: Why this lie? Are they thinking that we will panic, scramble to engage a lawyer, work overnight to draft a reply, and turn up at Vasai court at 11 am tomorrow, only to find with disappointment that there is no hearing? Or is Ekta World's top honcho Ashok Mohnani hatching plans to have us assaulted or killed on the way to the court? Or, has he laid a trap to fix us by framing us in a false case of some sort? Vasai is a notorious area, being the home-turf of well-known criminal gangs.

As always, watch this space for further developments. Dekhte rahiye iss dharavahik ki UGLY kadee!

ISSUED IN PUBLIC INTEREST BY
Krishnaraj Rao
9821588114
krish.kkphoto@gmail.com

PS: And in case you are wondering what I wrote about Ekta World that has them running to Civil Court, read these blog posts:

 POSTED IN PUBLIC INTEREST BY
Sulaiman Bhimani
9323642081