Pawan Kumar Dhoot vs Deo Kumar Saraf & Ors.

The plaintiff has filed a suit for defamation. The reliefs claimed in the suit are primarily directed against the defendant no.1. The plaintiff contends that

the articles published on 13th July 2017 are per se defamatory. Dispute arose with regard to purchase of land for Anandalok Hospital. The defendant

no.1 is one of the trustees of the Board of Trust of Anandalok Hospital. It appears that various persons have contributed for acquisition of the

property so that the hospital could be constructed on the said land.

Apparently, a Memorandum of Understanding was entered into between the plaintiff and the trustees on 1st March 2016 which shows that the Dhoot

Group would facilitate procurement / registration / handover of land to Anandalok within three months from the date of the said understanding and

thereafter Anandalok would start construction of the hospital within one year. All expenses related to land registration, stamp duty, land filling,

construction of boundary wall, hospital building etc. would be borne by Anandalok. A representative of Dhoot Group would head the Hospital

Construction Committee and thereafter Management Committee of the Hospital. A Dhoot Group representative would be appointed as trustee of

Anandalok. A suitable size marble slab will be installed highlighting Dhoot Group’s donation at the main gate of the Hospital.

The present dispute arose out of a communication dated 18th March 2017 in which Pawan Kumar Dhoot while referring to the past donations made

by the Dhoot Group to Anandalok had asserted that the plaintiff has donated 3 acres of land in Rajarhat worth crores of rupees for Anandalok for

building a Multi-Specialty Hospital. The defendant no.1 was unhappy with the communication as the defendant no.1 denied that there had been any

donation. But instead of keeping his grievance private, the defendant no.1 has gone public ventilating his grievance in a publication dated 13th July

2017 (wrongly mentioned in the petition as 30th July 2017). The article was published in “Prabhat Khabar†in which the defendant no.1 has stated

that Mr. Pawan Dhoot although claimed that he had donated 3 acres of land but the defendant no.1 did not receive any money. The Dhoot Group has

received consideration of Rs.4.67 crores for purchasing the said land. The defendant no.1 had to pay Rs.1 crore for boundary wall and approximately

Rs.1 crore for other miscellaneous expenses. It was claimed that although the entire consideration was paid for purchase of 182 cottahs of land but in

fact only 130 cottahs of land was handed over to the defendant.

It transpires from record as also from the correspondence exchanged between the parties that civil and criminal proceedings have been initiated by the

parties against each other concerning the present transaction. The claim of the Dhoot Group that they have donated the land appears to be on the

basis that the said land was sold at a reduced consideration and the difference between the actual price and the reduced price should be treated as

donation, although such stand was not explicitly made in any of its communications. The dispute seems to have arisen on the basis of representation

made by Dhoot Group that they have donated about Rs.6 crores. The donation, in my view, would involve absolute and unconditional payment without

receiving any consideration therefor. Any amount paid by way of a donation looses its character if in return any consideration amount is received.

Then it is not a donation. In P. Ramanatha Aiyar’s, The Major Law Lexicon, the word “donationâ€​ has been defined as:-

“The action of donating or giving, presentation; gratuitous transfer of property from one to another; that which is presented; a gift.Money or other

asset given by a person or organization to another person or organization (such as a charity or a political party). (Banking)â€. The word

‘donation’ came up for consideration before the Hon’ble Supreme Court in E.T. Commissioner vs. P.V.G. Raju reported in AIR 1976 SC

140, 142 [Expenditure Act (1958) S.5(j)] in which it is stated :

“When a person who is the owner of a thing voluntarily transfers the title and possession of the same from himself, without any consideration, it is

a donation.†It can be contended at the highest that the plaintiff has given up a larger portion of consideration amount considering the welfare of the

persons who are to be treated in the hospital. In the publications under challenge, it appears that the defendant no.1 has clarified that the Dhoot Group

had agreed to sell the said land at a reduced price and, therefore, it cannot be claimed that they have made any donation of Rs.6 crore. In fact, Dhoot

Group would not have claimed any benefit under the Income Tax Act treating acceptance of the reduced consideration as a donation. The Dhoot

Group in fact has not claimed any benefit under the Income Tax Act.

The payment made by the trustees for acquiring the said land was not highlighted, which now the trustees have admitted to bring on record to dispel

any doubt as to the real character of the transaction. This is of course not to say that the Dhoot Group possibly in furtherance of the philanthropic

activities agreed to accept a lesser consideration. Instead of filing litigation, the parties should have met and clarified the situation. Mr. Tiwari contends

that although the plaintiff had agreed to purchase 182 cottahs of land on behalf of Anandalok Hospital and apparently a communication was made on

9th January 2016 on behalf of Anandalok Hospital that the cost of purchase would be about Rs.9,14,00,000/out of which the plaintiff would pay Rs.6

crore and the balance Rs.3,14,00,000/- would be paid by the defendant trust, but in reality the land given to Anandalok Hospital by the plaintiff was

130 cottahs and the consideration paid for the said land matches with the circle rates prevailing in respect of the said properties. In the affidavit filed

by the defendant no.1, he has disclosed letters to show that the claim of donation has been refuted by the defendant no.1.

However, it appears that in the publication that followed the publication dated 13th July 2018, the defendant no.1 has made personal attacks on the

character and integrity of the plaintiff in relation to the said transaction, which was neither necessary nor desirable as the fact remains that the parties

are litigating as to whether there has been a donation or any excess amount has been paid by the defendants which is required to be refunded. The

plaintiff has not gone public with its stand. It is undeniable that the Dhoot Group in the past has donated substantial amount in the Hospital, which has

been acknowledged by the defendants also in their communication. Although the impugned publication dated 13th July 2017 does not appear to be per

se defamatory, but subsequent publications brought on record, which cast aspersions on the integrity of the plaintiff relating to the issue which is sub

judice should not have been published and more so when Court is in seisin over the matter.

Under such circumstances, the defendant no.1 is restrained from making any publication in any journal and/or newspaper questioning the integrity of

the plaintiff relating to the land in question till the issue is decided in the pending proceedings. However, it would not prevent the defendant no.1 from

making statements, if occasion so arises, in relation to the land in question, without disparaging remarks concerning the plaintiff. Mr. Tiwari on behalf

of the defendant no.1 has assured that the defendant no.1 would not make any such statement which would be derogatory or defamatory concerning

the integrity and character of the plaintiff in relation to the transaction in question. The plaintiff has also assured that the plaintiff shall not go public

with his claim for donation until the matter is decided by the appropriate forum.

The other defendants, namely the defendant nos. 3, 5 and 6, on earlier occasion had submitted that they do not support the statements made by the

defendant no.1 on behalf of the Trust. The defendant no.5 has filed an affidavit stating that he was not part of any decision making process and has

resigned in the meantime. The order is confined to the defendant no.1 as the other defendants have taken a stand that they are not supporting the

defendant no.1. This order shall however not prevent the respondent no.1 from making any communication to the plaintiff in private relation to the said

transaction making his stand clear, without using defamatory and inappropriate expressions. GA No. 2516 of 2017 stands disposed of. However, there

shall be no order as to costs.