Team Code-_______

IN THE SUPREME COURT OF INDIA

TIMES TUBE BROADCASTING Co. Ltd. (TTBC) (PETITIONER)

JUSTICE P.B. AMRIT (RESPONDENT)

5TH AMITY NATIONAL MOOT COURT COMPETITION, 2012

Memorial for the Respondent (Counsels on behalf of the Respondent)

F O R M 28

IN THE SUPREME COURT OF INDIA Order XVI Rule 4 (1) (a). SC Rules 1966

CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (Under Article 136 of the Constitution of India)

TIMES TUBE BROADCASTING Co. Ltd. (TTBC) (PETITIONER)

JUSTICE P.B. AMRIT (RESPONDENT)

TABLE OF CONTENTS

INDEX OF AUTHORITIES---------------------------------------------------------------------------------6 STATEMENT OF JURISDICTION-------------------------------------------------------------------------9 STATEMENT OF FACTS----------------------------------------------------------------------------------10 STATEMENT OF ISSUES----------------------------------------------------------------------------------12 SUMMARY OF ARGUMENTS---------------------------------------------------------------------------13 ARGUMENT ADVANCED--------------------------------------------------------------------------------15 PRAYER-------------------------------------------------------------------------------------------------------24

LIST OF ABBREVIATIONS

&: And AC: Appeal Cases AIR AP: All India Reporter Andhra Pradesh AIR Bom: All India Reporter Bombay AIR HP: All India Reporter Himachal Pradesh AIR Lah: All India Reporter Lahore AIR Mad: All India Reporter Madras AIR MP: All India Reporter Madhya Pradesh AIR Raj: All India Reporter Rajasthan AIR: All India Reporter All ER: All England Report Anrs.: Another Co. : Company CP: Civil Procedure CPC: Civil Procedure Code CrPC: Criminal Procedure Code Edn: Edition EWHC: England and Wales High Court IPC: Indian Penal Code KB: Kings Bench LJ: Law Journal LR: Law Report LRAC: Law Report Appeal Cases4 Ltd. : Limited Ors. : Others Pg: Page
4

QB: Queens Bench QBD: Queens Bench Division SC : Supreme Court SCC: Supreme Court Cases SCR: Supreme Court Reporter SLP: Special Leave Petition TTBC: Times Tube Broadcsting Co. Ltd. UKHL: United Kingdom House of Lords US : United States v : Versus WP(C): Writ Petition Civil

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INDEX OF AUTHORITIES

TABLE OF CASES A.V. Papayya Sastry v Govt of A.P. (2007) 4 SCC 221 Belt v. Laws (1882) 51 QB 359(LJ) Bowen v Hall 6 QBD. 333 C.M.G. Ogilvie v Punjab Akhbarat and Press Company Ltd (1929) AIR Lah 561 Cassidy v Daily Mirror Newspapers (1929) 2 KB 331 Datuk Harris Salleh v Abdul Jalil Ahmad (1984) 1 Malayan LJ 97 Donoghue v Hayes (1831) Hayes R 265 E Hulton Co v Jones (1909) 2 KB 444 E. Houlton and Co. v Jones (1910) L.R.A.C Hemraj v The State of Ajmer (1954) AIR 462 Himachal Road Transport Corpn v Gurdev Kaur (1983) AIR HP 74 Hough v London Express Newspapers (1940) 2 KB 507 J Lakshmikantham v U Rajamma (1982) AIR AP 337 Jagraj Singh v Birpal Kaur, (2007) AIR SC 2083 K.P. Narayanan v. Mahendra Singh (1957) AIR Khair-ud-Din v Tara Singh (1927) AIR Lah 20 at p 23 Knupffer v London Express Newspaper Limited (1944)AC 116 Le Fanu v Malcolmson (1848) 1 HLC 637, 664 Mathai v George (2010) 4 SCC 358 Mitha Rustomji Murzban v Nusserwanji Nowroji Engineer (1941) 43 BOM LR 631 Newstead v London Express Newspaper (1939) 4 All ER 319 (CA) P B Sawant v. Times Global Broadcasting Co. Ltd. And anr. 2011 (113) Bom LR 3801
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Prabhakar v Vinayakrao (1983) AIR Bom 301 Pritam Singh v The State (1950) SCR 453 R.v Hicklin, (1868) 3 QB 360 (LR) Rashpal Malhotra v Satya Rajput (1987) 4 SCC 391 Shepheard v Whitaker L R 10 CP 502 Sihor Nagar Palika Bureau v Bhabhlubhai Virabhai and Co. (2005) 4 SCC 1 Sim v Stretch (1936) 2 All ER 1237 SNM Abdi v Prafulla Kr. Mahanta and Ors. (2002) AIR Gau 75 State v Mohammad Hasan Khan (1983) AIR AP 277 Transmission Corporation of A.P. Ltd v Lanco Kondapalli Power Ltd (2006) 1 SCC 540

BOOKS

Amanda Pinto QC and Martin Evans Corporate Criminal Liability (2nd edn Sweet & Maxwell London 2008). David Price Korieh Duodu and Nicola Cain Defamation Law, Procedure & Practise (4th edn Sweet & Maxwell London 2010). DD Basu Shorter Constitution of India (13th edn Wadhwa and Company Nagpur 2006). Janet Loveless Criminal Law: Text, Cases, and Materials (2nd edn Oxford University Press New York 2010). Jeremy Clarke-Williams and Lorna Skinner A Practical Guide to Libel and Slander ( Butterworths London 2003). Media, Press & Telecommunications Laws (1st edn Eastern Book Company Lucknow 2007). MP Jain Indian Constitutional Law (6th edn Lexis Nexis Butterworths Wadhwa Nagpur 2010). Ratanlal Ranchhoddas and Dhirajlal Keshavlal Thakore The Indian Penal Code ( 31st edn Wadhwa Nagpur 2007). Ratanlal Ranchhoddas and Dhirajlal Keshavlal Thakore The Law of Torts (26th edn Lexis Nexis Butterorths Wadhwa Nagpur 2010).
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SC Sarkar Criminal Procedure Code ( 8th edn Wadhwa & Co. Nagpur 2005). Solil Paul and Anupam Srivastava Mulla: The Code of Civil Procedure (16th edn Lexis Nexis Butterworths New Delhi 2002) vol 4. Sudipto Sarkar and VR Manohar Code of Civil Procedure (11th edn Lexis Nexis Butterorths Wadhwa Nagpur 2006) vol 2. V Mitter Law of Defamation & Malicious Prosecution: Civil and Criminal ( 11th edn Universal Law Publishing Co. New Delhi 2008). WVH Rogers Winfield and Jolowicz on Tort (17th edn Sweet & Maxwell London 2006).

STATUTES OF LEGISLATION The Constitution of India, 1950 The Indian Penal Code, 1860 Civil Procedure code, 1908

STATEMENT OF JURISDICTION

The Respondent humbly submits the Memorandum for the Respondents in response to the Special Leave to Appeal by the Petitioners filed before The Honble Supreme Court of India under Article 136 of The Constitution of India, 1950.

STATEMENT OF FACTS

The Times Tube is a popular and leading 24-hours English television channel which is owned by a media house known as Times Tube Broadcasting Co. Ltd. (for brevity sake hereinafter referred to as T.T.B.C.). In one of its news broadcast on Sept 10, 2008 at 06:30 P.M. it ran a story on a multicrore provident fund scam. While mentioning the name of the then sitting judge of a High Court, Justice P.K. Amritya who was allegedly involved in the scam, it inadvertently displayed the picture of a retired Supreme Court Judge and a former Chairman Press Board of India Justice P.B. Amrit for 15 seconds due to mix up of phonetically similar sounding names. After realizing the mistake the news-channel made amends and did not show the picture in the subsequent bulletins and apologized to Justice Amrit and ran the apology in scroll news for five continuous days. However, Justice Amrit proceeded against TTBC for civil and criminal liability. According to him, firstly, the channel is liable to pay fine for the offence of libel; secondly, the criminal intention of the employee responsible for the broadcast of the picture should be imputed to the corporation; and lastly, the employee responsible for the broadcast should also be punished for the defamation caused in order to send a tough message to the news channel against such irresponsible journalism and libellous act. Further, Justice Amrit is of the opinion that once defamatory information about a responsible person is published, it is believed by the public and injures his reputation. Mere apologies do not compensate for the loss caused adequately. Further, the principle of slap say sorry forget has been discarded from the jurisprudence long back. The district court in which the case was filed awarded Justice Amrit Rs.100 crore as damages. The T.T.B.C. appealed to the concerned High Court which passed interim order against it to deposit Rs.100 crore (Rs.20 crore in cash and a bank guarantee for
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the rest amount of Rs.80 crore) with High Court Registrar as pre-condition before hearing appeal. Ultimately the matter was taken in special leave to appeal (SLP) under Art. 136 to the Supreme Court. TTBC argued that orders of both the High Court and the lower court are incorrect. The decision taken is not just, fair and reasonable. The award of damages of Rs. 100 crore for the inadvertent, trivial, human error, without explaining how it was quantified is violative of Doctrine of Proportionality (well established in jurisprudence). High libel damages are wholly uncalled for in the absence of any malice or intentional mistake on the part of the Television channel. Moreover, since TTBC is a corporate body hence criminal liability cannot be imputed to it. Further, award of grossly disproportionate, punitive and exemplary damages muzzles the freedom of speech and expression of media enshrined in Article 19 (1) (a) of Indian Constitution. T.T.B.C., now, seeks to quash the impugned order and pending criminal proceedings.

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STATEMENT OF ISSUES

I.

WHETHER THE CASE IS MAINTAINABLE IN SUPREME COURT UNDER SLP (SPECIAL LEAVE PETITION) UNDER ARTICLE.136 OF THE CONSTITUTION OF INDIA, 1950.

WHETHER THE COMPENSATION AWARDED IS PROPORTIONAL TO THE DAMAGE CAUSED. WHETHER THE INTERIM ORDER PASSED BY THE HIGH COURT IMPOSING PRE-CONDITION TO DEPOSIT RS. 100 CRORE AMOUNTS TO GRAVE INJUSTICE.

II.

WHETHER THE SUPREME COURT IS COMPETENT TO HEAR THE MATTER OF PENDING CRIMINAL PROCEEDINGS UNDER ARTICLE 136.

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SUMMARY OF ARGUMENTS

I.

THE CASE IS MAINTAINABLE UNDER SLP (SPECIAL LEAVE PETITION) UNDER ARTICLE 136 OF SUPREME COURT

The case is not maintainable under SLP (Special Leave Petition) under Article 136. Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.1 For SLP to be maintainable, violation of principles of justice, equity, good conscience and grave injustice2 must be proved. Absence of these has been proved in the following sub issues.

THE

COMPENSATION

AWARDED

IS

PROPORTIONAL

TO

THE

DAMAGE CAUSED The Respondents have been seriously defamed by the act of the petitioner. TTBC showed the picture of the respondent on a national television related to a multi-crore PF scam which caused a lot of damage to the reputation of Justice P.B.Amrit. Mere apologies from the petitioner will not suffice the amount of damage caused to his reputation. Therefore it is contended that the petitioner is liable for the injury caused. And the damages imposed by the district court are totally justified.

THE INTERIM ORDER PASSED BY THE HIGH COURT IMPOSING PRECONDITION TO DEPOSIT RS. 100 CRORE DOES NOT AMOUNT TO GRAVE INJUSTICE.

1 2

Article 136 of Constitution of India, 1950 Mathai v George (2010) 4 SCC 358

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Interim order imposing pre-condition is totally justified and does not amount to grave injustice. Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree3.Thus, a deposit or security is a condition precedent for an order by the Appellant Court staying the execution of the decree4.Further, Imposition of the pre condition is necessary to protect the interest of Justice Amrit as the court needs to ensure that the petitioner is ready to pay the disputed amount in case the appeal is decided in favour of the defendants.

II.

THE SUPREME COURT IS COMPETENT TO HEAR THE MATTER OF PENDING CRIMINAL PROCEEDINGS UNDER ARTICLE 136.

Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. 5 It has been specifically mentioned that Special Leave Petition can be heard only against a judgment, decree, determination, sentence or order. Since in the present case the case i s still pending before a competent court and no judgment has been passed, the Supreme Court cannot hear the matter in SLP.

Order 41 Rule 5 (5) of Civil Procedure (Amendment) Act, 1976 Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai and Co . (2005) 4 SCC 1; P B Sawant v. Times Global Broadcasting Co. Ltd. And anr 2011 (113) Bom LR 3801 5 Article 136 of Constitution of India, 1950.
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ARGUMENTS ADVANCED

I.

WHETHER THE CASE IS MAINTAINABLE UNDER SLP (SPECIAL LEAVE PETITION) UNDER ARTICLE 136 OF SUPREME COURT.

Article 1366 vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing of appeals by granting special leave against any kind of judgment or order. Article 136(1) says that Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India The phrase in any cause or matter confers the widest possible jurisdiction on the Supreme Court in the matter to grant special leave. The Supreme Court can grant special leave in civil cases, in criminal cases, in income tax cases, and cases which come up before different kinds of tribunal, proceeding the Advocates Act etc. and in variety of other cases. 7 However, Supreme Court would not exercise its jurisdiction under Article 136(1) unless there were exceptional and special circumstances existing8. The Supreme Court exercises this jurisdiction only where the Court is satisfied that there has been a grave miscarriage of justice and where a fundamental right of a person has prima facie been violated.9 The Court cannot interfere if manifest grave injustice or substantial question of public importance is not involved10. The Supreme Court intervenes where justice, equity and good conscience require such intervention.11

6 7

Constitution of India, 1950 Pritam singh v The State (1950) SCR 453 8 Hemraj v State of Ajmer (1954) AIR 462 9 Mathai v George (2010) 4 SCC 358 10 Rashpal Malhotra v Satya Rajput (1987) 4 SCC 391 11 A.V. Papayya Sastry v Govt of A.P. (2007) 4 SCC 221

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While exercising jurisdiction under Article 136 the conduct of the party is a relevant factor.12 And in a given situation the Court may refuse its discretionary jurisdiction under Article 136 if the conduct of the party has not been appropriate.13

For proving the maintainability of the SLP i.e. Special Leave Petition, the grounds laid down above must be proved beyond reasonable doubt. The petitioners has no such grounds and there. Hence, there SLP is not maintainable.

THE COMPENSATION AWARDED IS PROPORTIONAL TO THE DAMAGE CAUSED.

Black's Law Dictionary14 defines libel as- The act of making such a statement; publication of defamatory matter by written or printed words, by its embodiment in physical form or by any other form of communication that has the potentially harmful qualities characteristic of written or printed words. A defamatory statement is expressed in a fixed medium, esp. writing but also a picture, sign, or electronic broadcast. Libel is classified as both a crime and a tort. It is a publication of a false and defamatory statement, in some permanent form, tending to injure the reputation of another person without lawful justification or excuse. The publication, thus made, relating to the picture of the respondent is clearly false and defamatory. Wrong information about a responsible person was aired by T.T.B.C. to entire nation and beyond, which was further believed by the public, causing injury to his reputation. This falsity of the charge is presumed in Respondents favour15. Further, if a man has stated that which is false and defamatory, malice is also assumed16. And unless there is a plea of privilege or fair comment (which is not the case here), the law looks at the tendency and consequences of the publication rather than motive and intention of the publisher. Even if we assume the petitioner has actuated by the best of motive17 and didnt intend18 to refer to the respondent while publishing the news, malice can be attributed to it no matter how good their
12

Transmission Corporation of A.P. Ltd v Lanco Kondapalli Power Ltd (2006) 1 SCC 540 Jagraj Singh v Birpal Kaur (2007) AIR SC 2083 14 Black's Law Dictionary (9th ed. 2009), libel 15 Belt v. Laws, (1882) 51 LJ QB 359 16 C.M.G. Ogilvie v Punjab Akhbarat and Press Company Ltd (1929) AIR Lah 561
13 17 18

R.v Hicklin (1868) LR 3 QB 360 E Hulton Co v Jones (1909) 2 KB 444

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intentions were19. The petitioner cant take excuses about the defamatory publication being made by accident, by mistake20 or in jest21 and honest belief. A person may become liable for defamation without any intention or fault on his part22. Here, in this case even if we neglect the intention part and accept that it was an unintentional mistake, the tendency of this false publication was seriously defamatory and the consequences suffered thereby are unfathomable. Thus, the petitioner is liable for the defamation caused irrespective of their intention, motive or mistake. The publication thus made referred to the respondent in this case. It is not necessary for this purpose that the person should be described by his own name. It is sufficient if he is described by the initial letters of his name or even by a fictitious name, provided he can satisfy the court that he was the person referred to.23 Here, the respondent was referred to by his picture along with a phonetically similar sounding name. And it is sufficient a defence as long as those who know the plaintiff can make out that he is the person meant24.The person charged with libel cannot defend himself by showing that he intended not to defame the plaintiff. If in fact he did both.25 The intention is immaterial, and if it is deemed by reasonable person to refer to the respondent, the action is can be maintained.26 The publication should be in a permanent form in order to constitute a libel. It is said in Gatley on Libel and Slander that, if the publication is made in a permanent form or is broadcast or is part of a theatrical performance, it is libel27. And the broadcaster will be responsible for any material that is broadcasted even where the broadcaster has no real control over the person who makes the defamatory statement28. Also they may incur liability for completely unexpected and enforceable defamatory publication29. Thus, it can be inferred from the above that even broadcast is considered to be a permanent form of publication and

19 20

Bowen v Hall 6 QBD 333 Shepheard v Whitaker LR 10 CP 502 21 Donoghue v Hayes (1831) Hayes R 265 : "If a man in jest conveys a serious imputation, he jests at his peril." 22 E. Houlton and Co. v Jones (1910) L.R.A.C ; Cassidy v Daily Mirror Newspapers (1929) 2 KB 331 23 Le Fanu v Malcolmson (1848) 1 HLC 637, 664 ; Knupffer v London Express Newspaper Limited [1944] AC 116 24 Hough v London Express Newspapers (1940) 2 KB 507; C.M.G. Ogilvie v Punjab Akhbarat and Press Company Ltd (1929) AIR Lah 561 25 E. Houlton and Co. v Jones (1910) L.R.A.C ; C.M.G. Ogilvie v Punjab Akhbarat and Press Company Ltd (1929) AIR Lah 561 26 Newstead v London Express Newspaper (1939)4 All ER 319 (CA) 27 Gatley on Libel and Slander 28 defamation, 4th edn david price, korieh duodu and Nicola cain (pub: sweet and Maxwell) 29 Faulks Committee, Cmnd. 5909 (1975), para.298

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even if it was the fault of the employee and T.T.B.C. had no real control over it, it will be held liable and it will incur liability. The test of defamation is whether the words tend to lower the plaintiff in estimation of right thinking members of society generally.30 The respondent, being a retired Supreme Court Judge and a former Chairman Press Board of India, was a familiar name in media circle and enjoyed a good reputation. Even when wrong information about a responsible person is aired by the TV channel to entire nation and beyond, it is believed by the public and injures that persons reputation. And the effect is manifold when the information about the much criticized multi crore provident fund scam is shown for a full 15 seconds at the prime time. Also, for it to be defamatory an imputation need have no actual effect on claimants reputation; the law looks only to its tendency, so there is a cause of action even if words were not believed by the audience31. The tendency of such a publication to defame the respondents is unquestioned, as it is very likely to cause damage to respondents reputation no matter what. The publication made doesnt fall under any of the defences either.

The defences of justification by truth and fair and bona fide comment are negated as the publication was completely false. Even the petitioners agree on this point because they amended and apologized for the same. The defence of privilege also stands negated. The media (newspapers, broadcasts) enjoy no added privileges and are subjected to the same rules as other critics. Even though it owes a duty to public to communicate matters of public interest, it is not a privileged one32. Instead journalists who publishes complaints of defamatory nature is specially not privileged as they have a greater responsibility to guard the public against the untruths because whatever they say is likely to be believed by the ignorant33. The defence of unintentional defamation also stands rejected because intention is imputed to the conduct of the petitioner. And even if it is not considered here, a person may become liable for defamation without any intention or fault on his part34 as long as there is a tendency in the publication, making it capable enough, to cause defamation. Also, respondent wouldnt ever give consent for such a publication, which reject the possibility of defence

30 31 32 33 34

Sim v Stretch (1936) 2 All ER 1237 Hough v London Express Newspapers (1940) 2 KB 507 Mitha Rustomji Murzban vs Nusserwanji Nowroji Engineer (1941) 43 BOM LR 631 Khair-ud-Din v Tara Singh (1927) AIR Lah 20 at p 23 E. Houlton and Co. v Jones (1910) L.R.A.C ; Cassidy v Daily Mirror Newspapers [1929] 2 KB 331

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where consent of the claimant is there. And lastly, there are defences of offer to amends and apology. Offer to amends and apologies were never accepted by the judge therefore it cannot be accepted as a defence. Assessing by the above arguments, respondent should be properly compensated. The assessment does not depend on any legal rule but the following factors should be considered35: A. The conduct of the plaintiff (respondent in this case)-

There has been no indication that there has been any bad conduct on the part of the plaintiff and neither is there any evidence to suggest or imply so. B. His position and standing- Higher the plaintiffs position, heavier the damages. This is so as such persons are more vulnerable to defamation in so far as they are more well known, often hold public positions of considerable responsibility and trust and come into wider contact with more people and may have a wider circle of friends. The respondent, being a former Chairman of Press Board of India, was a very familiar name in the media circle. Also, being a retired Supreme Court Judge, he was considered a responsible person and would have had a good reputation. The reputation of such a magnitude needs to be compensated with proportional damages. C. The nature of the libel The publication, being the one related to a high profile corruption scandal and that too showing the wrong picture of an innocent party along with other corrupt individuals at prime time is extremely defamatory in nature and needs to be compensated accordingly. D. The mode and extent of publication- Picture of the respondent was shown for a full 15 seconds on a very popular and a leading 24-hours English television channel for a full 15 seconds at the prime time i.e. 6:30 P.M., where millions of people are watching a large scale corruption scandal. The extent of defamation caused is unfathomable. The damage caused to the reputation in such circumstances needs to be substantiated with compensatory damages. The reason being that the media in its ordinary course of nature publishes news for profit. So, the amount of profit that the petitioners must have made by defaming respondents in a publication of such a magnitude.

35

Datuk Harris Salleh v Abdul Jalil Ahmad (1984) 1 Malayan LJ 97 ; SNM Abdi v Prafulla Kr. Mahanta and Ors. (2002) AIR Gau75

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E. The absence or refusal of any retraction or apology though there had been an apology but the same was never accepted which negates the whole defence altogether. Also, mere apologies cannot restore respondents damaged reputation and adequately compensate him. The defamation done by the petitioner fulfils all the essentials of defamation and damages as well as negates each of the defences. It is hereby established that the respondents were severely defamed and the damages provided are absolutely proportional when we gauge the amount of defamation caused on the national television and the reputation enjoyed by the respondent before that. Also, the pre-condition imposed by the High court is reasonable enough when we look into the intensity of the wrong committed. The court wants to be sure enough whether petitioners will pay the damages in case they lose the current case as well. And even in case they win the case the whole amount will be returned as it is. So there is no question of grave injustice being done against the petitioner, it is just a matter of security that the court is imposing it the damages as a whole.

THE INTERIM ORDER PASSED BY THE HIGH COURT IMPOSING PRECONDITION TO DEPOSIT RS. 100 CRORE DOES NOT AMOUNT TO GRAVE INJUSTICE It is humbly contended before this honourable Supreme Court that the interim order passed by the High Court imposing the pre condition to deposit Rs. 100 crore is justified. An Interim Order is generally passed by the Court to ensure Status quo. The rationale for such order is to ensure that none of the interests of the parties to the litigation are harmed, as stated in the Latin legal maxim "Actus curiae neminem gravabit" which stands for "an act of the court shall prejudice no one". In the present case the imposition of the pre condition ensures that the interest of the defendant, who is the aggrieved party in the original case, is not harmed. The pre condition makes sure that the appellant deposits the amount directed by the district court so that it can ensure that there will be no default on its part later on, if the case is decided in the favour of the defendant and sufficient justice could be done to Justice Amrit as compensation to his lost reputation.

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When it comes to granting stay to the execution of a money decree in an appeal, Order 41 Rule 1 of Civil Procedure Code, 1908 and Order 41 Rule 5 (5) of Civil Procedure (Amendment) Act, 1976 come into picture. Under Order 41 Rule 1 (3)36, it is stated that : Where the appeal is against a decree for payment of money, the appellant shall, within such reasonable time as the appellate court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the court may think fit.; However, it has been held that it is not necessary that in an appeal against a money decree, before an application for stay of execution of the decree is made, the decretal amount should be deposited or security must be tendered. The application for stay of execution is maintainable without prior deposit of decretal amount or tender of security37. However, Order 41 Rule 5 (5)38 states that: Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree. A bare reading of the two provisions referred to hereinabove shows that although the imposition of a pre-condition before hearing an appeal regarding payment of money is not mandatory but only directory since the word shall has been used in Order 41 Rule 1 (3)39, however, Order 41 Rule 5 (5)40, has been interpreted differently in the cases of Sihor Nagar Palika Bureau v. Bhabhlubhai Virabhai and Co.41 and P B Sawant v. Times Global Broadcasting Co. Ltd. And anr.42 and it has been held that: under Order 41 rule 5(5), a deposit or security is a condition precedent for an order by the Appellant Court staying the execution of the decree.
36

Civil Procedure Code, 1908; Where the appeal is against a decree for payment of money, the appellant shall, within such reasonable time as the appellate court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the court may think fit.; However, it has been held that it is not necessary that in an appeal against a money decree, before an application for stay of execution of the decree is made, the decretal amount should be deposited or security must be tendered. The application for stay of execution is maintainable without prior deposit of decretal amount or tender of security.
37

State v Mohammad Hasan Khan (1983) AIR AP 277; Prabhakar v Vinayakrao (1983) AIR Bom 301; contra Himachal Road Transport Corpn v Gurdev Kaur (1983) AIR HP 74; J Lakshmikantham v U Rajamma (1982) AIR AP 337 38 Civil Procedure Code, 1908. 39 Civil Procedure Code, 1908 40 Civil Procedure (Amendment) Act, 1976 41 (2005) 4 SCC 1 42 2011 (113) Bom LR 3801

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Although discretion has been conferred upon the appellate court to direct either deposit of the amount disputed or to permit such security in respect thereof being furnished as the appellate court may think fit. However, this discretion has to be exercised judicially and not arbitrarily depending upon the facts and circumstances of a given case.43 It is contended that the defendants act of broadcasting the picture of an innocent person in relation to a multi crore PF scam, on national television at prime time is nothing short of reckless attitude and in respect of such reckless attitude, no question of staying the decree unconditionally or to exercise the discretion to reduce the amount of deposit or security in any manner, arises. Further, imposition of the pre condition is necessary to protect the interest of Justice Amrit as the court needs to ensure that the appellant is ready to pay the disputed amount in case the appeal is decided in favour of the defendants. Hence, the interim order passed by the High Court imposing the pre condition to deposit Rs. 100 crore is valid and justified.

II.

THE SUPREME COURT IS COMPETENT TO HEAR THE MATTER OF PENDING CRIMINAL PROCEEDINGS UNDER ARTICLE 136.

Article 13644 vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing of appeals by granting special leave against any kind of judgment or order. Article 136(1) says that Notwithstanding anything in this chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.45 The article specifically states that special leave to appeal can be granted only against any judgment, decree, determination, sentence or order.46 Further, the court would not grant special leave on grounds which not sustain the appeal itself.47

43

P B Sawant v Times Global Broadcasting Co. Ltd. and Anr 2011 (113) Bom LR 3801 Constitution of India, 1950 45 Article 136 of Constitution of India, 1950.
44

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In the present case, firstly, the criminal proceedings are still pending before a competent court. No judgment, decree, determination, sentence or order has been passed by the competent court. Secondly, nothing has been specifically mentioned under any clause of Article 136 regarding hearing of the case of pending proceedings under SLP. Lastly, no special appeal can be granted in a case where no appeal can be filed. Here in the present case, since the proceedings are sub judice i.e. going on in a competent court, no question of filing another appeal arises. Hence, the Supreme Court does not have jurisdiction to hear the matter of pending criminal proceedings under Special Leave Petition under Article 136. Since the Supreme Court is not competent to hear the matter, hence the respondent need not prove intention of the employee or liability of the corporation.

46 47

Article 136 of Constitution of India, 1950. Pritam singh v. the state (1950)SCR 453

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PRAYER

In light of the issues raised, arguments advanced and authorities cited, the petitioner humbly prays that this Honorable Court be pleased to adjudge and declare WITH REGARD TO THE PRELIMINARY SUBMISSION AS AGAINST THE PETITIONER THAT: The interim order given by the high court is correct. The impugned order along with the pending criminal proceedings should not be quashed. AND A regulatory body Pass any further order(s) as it may deem fit in equity, justice and good conscience

And for this act of Kindness, the Appellant as in duty bound, shall forever pray.

+ Respectfully Submitted Counsel for the Respondent.

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