JUSTICE P.T. ASHA O.A.No.1026 of 2020 in C.S.No.541 of 2019–Therefore, it is my considered view that there is no necessity to issue summons to M/s. Google LLC at 600 Amphitheatre Parkway Mountain view California 94043 United States of America and Google India Private Limited at No.3 RMZ Infinity Tower E Old Madras Road 4th and 5th Floor Bangalore 560 016 to produce all the records relating to email dated 17.08.2019 from Gmail account arul.viswanathan@gmail.com. The application is therefore dismissed. The matter is therefore posted before the learned Master on 23.09.2020 for cross-examination of P.W.1.

IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 31.07.2020
Delivered on : 13.08.2020
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
O.A.No.1026 of 2020
in
C.S.No.541 of 2019

Ravi Raman … Applicant
Vs

Arul Viswanathan . .. Respondent

Prayer: Judges Summons filed under Order XIV Rule 8 of the Original Side Rules read with Order XVI rule 6 & Section 151 of the CPC praying to issue summons to Google LLC at 600 Amphitheatre Parkway Mountain view California 94043 United States of America and Google India Private Limited at No.3 RMZ Infinity Tower E Old Madras Road 4th and 5th Floor Bangalore 560 016 to produce all records relating to email dated 17.08.2019 from email Gmail account arul.viswanathan@gmail.com with subject Nomination submitted by Rtn.Ravi Raman from R C Madras Coromandel for DGN 2022-23-Misrepresentation of facts Misleading Claims and Discrepancie in the Bio data submitted request disqualification of the candidature of Rtn.Ravi Raman
For Applicant : Mr.Vineeth Subramaniam

For Respondent : Mr.Madhu Prakash

ORDER

The plaintiff who is the applicant in this application has taken out the same seeking the following direction:
“To issue summons to Google LLC at 600 Amphitheatre Parkway Mountain view California 94043 United States of America and Google India Private Limited at No.3 RMZ Infinity Tower E Old Madras Road 4th and 5th Floor Bangalore 560 016 to produce all records relating to email dated 17.08.2019 from Gmail email account ‘arul.viswanathan@gmail.com’ with the subject “Nomination submitted by Rtn.Ravi Raman from R C Madras Coromandel for DGN 2022-23-Misrepresentation of facts, Misleading Claims and Discrepancies in the Bio data submitted – Request disqualification of the candidature of Rtn.Ravi Raman”.
Parties shall be referred to in the same array as in the suit.

2. Before discussing the contentions made in the application and the counter thereto, it is necessary to briefly allude to the facts which has given the cause of action to the plaintiff for instituting the suit in C.S.No.541 of 2019.

3. The plaintiff is the member of the Rotary Club of Madras Coromandel since 1996 and on account of his involvement in the activities of the Rotary, he had been elected twice to serve as President, firstly for the term 2000 – 2001 and again for the term 2013 – 2014. The plaintiff in his plaint would submit that he has been an active participant in all the events and activities of the Club and in recognition of his participation in the various activities, he has been felicitated with numerous awards.

4. The plaintiff would contend that he had filed his nomination for the post of the District Governor of the Rotary and besides him there were two other candidates. It was clear from the initial forecast that the plaintiff was the forerunner in the elections. The elections were due to close on 15.09.2019.

5. The plaintiff would submit that he was informed by members of the Rotary who were his friends that the defendant had addressed an e-mail dated 17.08.2019 to the District Governor, Mr.G.Chandra Mohan, making several false defamatory allegations against the plaintiff. Though the mail was addressed to the District Governor it has been sent to all the Rotary members who had a vote in the elections. The plaintiff would submit that in the said e-mail, the defendant has tarnished the plaintiff’s image and it appears that the same was made with a view to impede plaintiff’s success in the elections. Pursuant to this e-mail many of the Rotary members who were friends and associates of the plaintiff have started withdrawing from his Company and had also informed the plaintiff that they wished to discontinue their association with the plaintiff. In fact, the plaintiff had received several phone calls enquiring about the veracity of the contents.

6. The plaintiff would further submit that he was unable to respond to the e-mail in view of the fetter placed by the Rotary bye – law 13.010 which prohibited candidates from entering into correspondence with the electorate. The plaintiff would submit that the defendant through his e-mail has successfully tarnished the image, reputation and good will that the plaintiff had built over the decades and the contents of the e-mail were per se defamatory.

7. The plaintiff had issued a notice dated 21.08.2019 to the defendant seeking an apology from him. Although the defendant had received the said e-mail there was no response from his end. By his silence he had therefore not refuted the contents of the plaintiff’s notice. Thereafter, the plaintiff had initiated criminal proceedings before the XVIII Metropolitan Magistrate, Saidapet on 26.08.2019. Several persons had attempted to mediate between the defendant and the plaintiff however the defendant was not ready to back down. These reasons had constrained the plaintiff to file the suit O.S.No.541 of 2019 for the following reliefs:
“a) Permanent injunction restraining the defendant, whether by himself, partners, employers, servants, agents or otherwise whosoever from seeking to or continuing to defame the plaintiff and spreading defamatory contents and communications against the plaintiff;

b) Award damages of Rs.1,00,00,100/- (Rupees One Crore One Hundred only) against the defendant.”

8. In the suit, the defendant had entered appearance and had also filed his written statement and the suit was posted for Trial. The plaintiff examined himself as P.W.1 and his chief examination was concluded. On such completion of chief examination the plaintiff has filed the instant application for a directions to M/s. Google LLC at 600 Amphitheatre Parkway Mountain view California 94043 United States of America and Google India Private Limited at No.3 RMZ Infinity Tower E Old Madras Road 4th and 5th Floor Bangalore 560 016 to produce all records relating to the e-mail subject matter of the suit. The reasons for taking out the application is on account of the fact that though the e-mail would show that it was only sent to the District Governor, G.Chandra Mohan, however, in reality the e-mail was sent under BCC (Blind Carbon Copy) to multiple persons.

9. It is the categoric case of the defendant, in his written statement the e-mail was sent only to the District Governor, G.Chandra Mohan and none else.

10. The plaintiff would submit that since by its very nomenclature BCC is a Blind Carbon Copy where the identities of the Addressees / Recipients are totally masked. Therefore this information can be retrieved only by summoning the details from M/s.Google LCC. This information is very vital to substantiate the plaintiff’s contention that the defendant had tarnished the image of the plaintiff by sending the defamatory and malicious mail to all the members who had a say in the elections.

11. In his counter to the said application, the defendant would reiterate that the e-mail was sent only to the District Governor and that there was nothing malicious in the e-mail since the defendant was only bringing to the notice of the District Governor the fact that the plaintiff was not a fit candidate for contesting the post of the District Governor. The defendant would contend that the voters had right to know the details about the candidates who were to be elected to the post of the District Governor as it was the best candidate who had to be elected. The defendant had further contended that this application is an attempt to drag on the suit and is made with an intent to divert the attention of the Court. The defendant would also contend that the statement in the e-mail was not defamatory. Interestingly, there is no categoric opposition to the application filed by the plaintiff.

12. Mr.Vineeth Subramaniam, learned counsel appearing on behalf of the plaintiff would submit that once the application is ordered and the data is received for M/s.Google it would save the plaintiff the trouble of examining several persons to substantiate his case. He would further state that considering the status of these persons who had passed on the information to the plaintiff, they may not come forward to give evidence and thereby the plaintiff may not be in a position to establish his case that the defamatory statement has traveled to several persons. He would further contend that the substantial cause of action for the suit is the marking of the defamatory e-mail to several persons. He would further argue that the plaintiff has pleaded that the e-mail though addressed to the District Governor has been sent to all the Rotary members and the contents of the e-mail being per se defamatory the plaintiff’s reputation has been tarnished. He would also argue that a copy of the e-mail was also sent to the plaintiff and the plaintiff had e-mailed the same to his counsel and that when filing the suit the typed copy of this e-mail was filed. He would provide the following reason for filing the suit with a typed copy:
“since the plaintiff’ was unable to print the original from the Internet without assistance”.

13. He would also draw the attention of this Court to paragraph no.20 of the plaint, wherein, he would contend as to how his friends and acquaintances have decided to discontinue their relationship with him on account of this e-mail. The learned counsel would further argue he has immediately taken steps to file the suit since the very mail was an attempt to ensure that the plaintiff would not be chosen as the District Governor especially when the early indications clearly showed that the plaintiff was the forerunner. The learned counsel would contend that since the contents of the e-mail are per se defamatory, the fact that it has been sent to several persons would clinch his case. He would also add that no prejudice will be caused to the defendant if the application is allowed.

14. Mr.Madhu Prakash, learned counsel arguing on behalf of the defendant would reiterate that the e-mail was only addressed to the District Governor but would add that the same could have reached the hands of the comnmittee members since the e-mail was to bring to the notice of the Electoral College the fact that the plaintiff was not a fit candidate for the post of the District Governor. The learned counsel would contend that the contents of the e-mail was by no stretch of imagination defamatory as the defendant was only attempting to bring to the notice of the District Governor how the candidature of the plaintiff cannot be accepted as he was not qualified to hold such an esteemed Office.

15. Heard the counsels and perused the affidavit, the application, the counter, the plaint and the documents that have been marked by the plaintiff as P.W.1.

16. The plaintiff has come forward with a definite case that the defendant had addressed the e-mail to the District Governor marking Blind Carbon Copies to all the Rotary members. Since the recipients were marked as BCC it is impossible for the plaintiff to get the details of the recipients. This application is moved only to get these details so as to substantiate the case of the plaintiff. The suit in question is one for defamation. The plaintiff has stated that the e-mail sent by the defendant containing defamatory statements has been seen by various persons who had contacted him and informed him that the said e-mail had been received by them and had sought his clarifications on the contents of the e-mail. Many of them had also started disassociating themselves from the plaintiff in view of these allegations contained in the defamatory mail.

17. In paragraph no.20 of the plaint the plaintiff has made this statement:
“20. Pursuant to the receipt of the defendant’s email, several Rotary members, being friends and associates of the plaintiff, believed the contents of the defendant’s email communication to be true and informed the plaintiff that they wish to discontinue their relationships. Plaintiff received several phone calls enquiring about the veracity of the contents of the defendant’s email. It is submitted that the plaintiff had to go to great extent to prove and convince several recipients of the defendant’s email that the contents of the same are false and untruthful.”

18. In paragraph no.31 of the plaint, where the cause of action for the suit has been extracted, the plaintiff has contended as follows:

“31. The cause of action arose on 17 August 2019, when the defendant wrote an email with defamatory contents to several members of Rotary; when Mr.Satish Ganesan, Immediate Past President of the Rotary Club of Chennai Serenity, and Mr.A.Gavaskar, Secretary of the Rotary Club of Chennai Serenity, as well as various other Rotary members informed the plaintiff about the defamatory statements in the email and enquired about the same and sought to distance themselves from plaintiff by severing relationships built over decades.”

19. Interestingly, though a typed copy of the e-mail has been filed as a document along with the plaint there is no specific pleading in the plaint as to whether the defendant had marked a copy to the plaintiff or that he had received the copy from some third party. It is in the course of his arguments the learned counsel for the plaintiff has stated that even the plaintiff was a recipient of the e-mail and in his affidavit filed in support of the instant application a statement is made that due to paucity of time and as the plaintiff was technologically challenged he was unable to take a print out of the e-mail received by him without assistance and that therefore the suit had been filed with a typed copy. It is not known as to why the e-mail as received has not been filed but the plaintiff has taken pains to type it out. Further, while marking the document, once again, it is only the typed copy of the e-mail that has been filed and not the e-mail as received by the plaintiff. Infact, the nature of the said e-mail has been described as a photocopy and not as a typed version. Be that as it may, at least at the time of adducing evidence the plaintiff could have got necessary assistance to printout the e-mail as received by him. If this e-mail had come from the e-mail address of the defendant or a third party it would clearly disprove the statement of the defendant that the e-mail was only sent to the District Governor.

20. In the light of the bald pleadings regarding the receipt of the e-mail by the plaintiff it is very well open to the plaintiff to have demanded a copy of the e-mail from the defendant. In order to appreciate this it is necessary to briefly touch upon the procedure contemplated by the Rules of the High Court, Madras (Original Side), 1994, herein after called the Rules. Order I Rule 3 of the Rules clearly states that where a provision is not available in the Rules then the parties can fall back on the provisions of the Code of Civil Procedure. The Rules does not provide for a provision similar to the provisions of Order XI Rule 12 of the Code and therefore we have to necessarily fall back on the provisions of the Code. Order XI Rule 12 of the Code of Civil Procedure provides for any party to the suit to direct the other party to the suit to make a discovery of the documents which are in their possession, relating to a matter which is in question in the suit. In the instant case the entire cause of action revolves around the e-mail which is stated to have been forwarded by the defendant to several other persons, thereby defaming the plaintiff. A request does not appear to have been made by the plaintiff demanding a copy of the email from the defendant. After the settlement of issues on 04.02.2020, the plaintiff has not provided a list of witnesses and that the plaintiff intends to summon the documents from M/s. Google. The provisions of Order XVI Rule 1 of the Rules contemplates furnishing of the list of witnesses as well as affidavit of documents. The provisions of Order XVI Rule 1 (iii) of the Rules does make provision for a party to summon a witness whose name is not reflected in the list contemplated under Sub Rule 1. However, sufficient cause for the omission to mention has to be provided for. The affidavit which is filed in support of the instant application does not provide any such details. It is to be borne in mind that the plaintiff has concluded his chief and the matter is posted for the cross examination of the plaintiff at which juncture the present application has been taken out.
21. That apart, the plaintiff has given the details of the persons who have received the e-mail in the cause of action paragraph though not in the paragraphs containing the facts. It is need less to state that if a single recipient of the said notice adduces evidence to the fact that they were marked and had received the mail it would demolish the case of the defendant that only the District Governor was a recipient. This would clearly clinch the case of the plaintiff that the e-mail has been addressed to third parties other than the sole addressee as contended by the defendant. Further in the criminal complaint filed by the plaintiff, Satish Ganesan, Immediate Past President of the Rotary Club, Chennai Serenity and A.Gavaskar, Secretary of the Rotary Club, Chennai Serenity are shown as witnesses. Therefore, the plaintiff can very well prove his case by examining the aforesaid persons.

22. Be that as it may, since in the criminal complaint, the plaintiff has already shown two persons who are no less then the Past President of the Rotary Club of Chennai Serenity and the Secretary of the Rotary Club of Chennai Serenity, who are responsible persons as well as members of the Rotary Club and who the plaintiff has contended are recipients of the e-mail can adduce evidence on behalf of the plaintiff. The plaintiff has not demanded the production of the e-mail from the defendant as provided under the provisions of Order XI Rule 12 of the Code of Civil Procedure which is the best evidence that can be placed for the consideration of the Court. The plaintiff in the guise of this application is attempting to collect evidence and protract the proceedings.

23. Therefore, it is my considered view that there is no necessity to issue summons to M/s. Google LLC at 600 Amphitheatre Parkway Mountain view California 94043 United States of America and Google India Private Limited at No.3 RMZ Infinity Tower E Old Madras Road 4th and 5th Floor Bangalore 560 016 to produce all the records relating to email dated 17.08.2019 from Gmail account arul.viswanathan@gmail.com. The application is therefore dismissed. The matter is therefore posted before the learned Master on 23.09.2020 for cross-examination of P.W.1.
13.08.2020
Internet : Yes/No
Index :Yes/No
Speaking / Non-Speaking
kan

P.T. ASHA. J,

kan

Pre-delivery order in
O.A.No.1026 of 2020 in
C.S.No.541 of 2019

13.08.2020