WS04_P

BEFORE

THE HON’BLE HIGH COURT OF BOMBAY

PLAINT FILED UNDER SECTION 6 OF THE CIVIL PROCEDURE CODE OF INDIA, 1908

COMMISSIONER OF INCOME TAX

Mr. HEISENBERG (PLAINTIFF)

v.

TRAVEL
M/S. S
ABC PRIVATE
COMPANY
OLUTIONS PVT.LLTD
IMITED (DEFENDANT)

WRITTEN SUBMISSION FOR PLAINTIFF

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INDEX

LIST OF ABBREVIATIONS .......................................................................................... ii N

INDEX OF AUTHORITIES .............................................................................................iii

STATEMENT OF JURISDICTION ..............................................................................viii

STATEMENT OF FACTS ...............................................................................................ix

STATEMENT OF ISSUES ................................................................................................x

SUMMARY OF ARGUMENTS .........................................................................................xi

ARGUMENTS ADVANCED ................................................................................................1

WHETHER THE TRAVEL SOLUTIONS PRIVATE LIMITED IS RESPONSIBLE

FOR NEGLIGENCE………………………………...…….………………………… 1-6

WHETHER MR. HEISENBERG IS LIABLE FOR MAKING DEFAMATORY

STATEMENTS TOWARDS TRAVEL SOLUTIONS PRIVATE LIMITED…… 6-13

WHETHER THE DEFENDENT IS LIABLE TO PAY RUPEES 1 CRORE AS

COMPENSATION TO THE PLAINTIFF……………………………………….. 13-16

PRAYER…………………………………………………………………………………17
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LIST OF ABBREVIATIONS

ABBREVIATIONS MEANING
• § Section
• ¶ Paragraph
• & And
• A.I.R All India Reporter
• Anr. Another
• Art. Article
• TSPL Travel Solutions Private Limited
• H.C. High Court
• Id. Ibid
• Ltd. Limited
• No. Number
• Ors Others
• pg. Page
• r/w Read with
• Pvt Private
• S.\Sec. Section
• S.C. Supreme Court
• U.O.I. Union of India
• V.\ Vs. Versus
• Vol. Volume
• QB Queen’s Bench
• SCC Supreme Court Cases
• KB King’s Bench
• UKHL United Kingdom House of Lords
• AC Appeal Cases
• All er All Indian Reporter
• Lloyd’s rep Lloyd’s Representative
• H&N Hurlstone and Norman Ex-checker Reports

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INDEX OF AUTHORITIES

LIST OF CASES

Sr.No NAME OF THE CASE RELEVANT CITATION

1. Bennett Coleman and Co. Ltd. and Ors. vs. K. AIR 1990 Ori 107

Sarat Chandra and Ors.

2. Blyth v. Birmingham Waterworks Co (1856) 11 Exch 781

3. Cambhell v. Spottiswoode (1863) 3 B&S 769

4. Caparo Industries pic v. Dickman UKHL 2,, 2 AC 605

5. Cooper v. Lawson (1838) 8 AD&E 746(1838)

8 AD&E 746

6. Cooper v. Lawson (1838) 8 AD&E 746(1838)

8 AD&E 746

7. Dainik Bhaskar v. Madhusudan Bhaska AIR 1991 MP 162

8. Dainik Bhaskar v. Madhusudan Bhaskar AIR 1991 MP 162

9. Dillon LJ in Burton v. Islington HA [1992] EWCA Civ 2

10. Dillon LJ in Burton v. Islington HA [1993] QB 204

11. Haley v. London Electricity Board [1965] AC 778

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12. Henwood v. Harrison (1872) 7 LRCP 606

13. Joseph M. Puthussery v. T.S. Joh (2011) 1 SCC 503

14. Joseph M. Puthussery v. T.S. John 2011) 1 SCC 503

15. Kemsley Vs. Foot and Ors 1952 AC 345 HL

16. Khushwant Singh v. Maneka Gandhi AIR 2002 Delhi 58

17. Kokan Unnati Mitra Mandal Ors vs Bennet 2012 (1) AllMR 359

Colemna; Co. Ltd. & Ors

18. Life Insurance Corporation of India & Union of AIR 1993SC 171

India v. Prof Manu Bhai D.Shah & Cinemart

Foundation

19. Life Insurance Corporation of India ; Union of AIR 1993SC 171

India v. Prof Manu Bhai D.Shah ; Cinemart

Foundation

20. London [1969] 2 QB 375 CA

Artists Ltd. v. Littler

21. Merivale v. Carson (1887) 20 QBD 275

22. of Indian Express Newspapers (Bombay) v. Union AIR 1986SC872

of India

23. Overseas Tankship (UK) Ltd. v. Morts (1961) 1 All ER 404,

Dock and Engg. Co. Ltd,

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24. Overseas Tankship (UK) Ltd. v. Morts Dock and (1961) 1 All ER 404

Engg. Co. Ltd

25. Prager v. Time Newspapers Ltd (1988) 1 All ER 300

26. Radheshyam Tiwari v Eknath Dinaji Bhiwapurkar AIR 1985 BOM 285

and Others

27. Radheshyam Tiwari vs Eknath Dinaji AIR 1985 Bom 285

Bhiwapurkar

28. Radheshyam Tiwari vs Eknath Dinaji AIR 1985 Bom 285

Bhiwapurkar

29. Raghunath Damodhar v. Janardhan Gopal (1891) 15 ILRBom 599

30. Raghunath Damodhar v. Janardhan Gopal, , (1891) 15 ILRBom 59

31. Rajkot Municipal Corpn. v. Manjulben Jayantilal (1997) 9 SCC 552,

Nakum.

32. Ram Jethmalani v. Subramaniam Swamy 126 (2006) DLT 535

33. Reynolds v. Times Newspapers (1999) 4 All ER 609

34. Reynolds v. Times Newspapers, (1999) 4 All ER 609

35. Rustom K. Karanjia and Anr. v. Krishnaraj AIR 1970 Bom 424,

M.D. Thackersey

36. South Hetton Coal Co. v. N.E. News Assn (1894) 1 QB 133(143)

37. Subramanian Swamy v Union of India, Ministry 2016 AIR(SC) 2728

of Law and others

38. Sutradhar v. Natural Environment Research [2006] UKHL 33

Council.

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39. T.V. Ramasubba Iyer and another Vs. A. M. AIR 1972 MADRAS 398

Ahamed Mohideen

40. Toogood v. Spyring 149 E.R. 1044

41. Union Benefit Guarantee Company Limited v AIR 1936 BOM 114

Thakorlal P. Thakor and Others

42. Waghela Rajsanji Vs. Shekh Masluddin (1889) ILR 13 Bom 330

LIST OF BOOKS

Sr.No Name of the Book Author

1. The Law of Obligations John Fleming

2. Modern Tort Law Vivienne Harpwood

3. Law of Torts with Consumer R.K.Bangia

Protection Act

4. The Law of Tort Ratanlal and Dhirajlal

5. Tort in Commercial Tort James Edelman and James

Goudkamp

6. Tort Law Principles Bernadette Richards and

Melissa de Zwart

7. Understanding Tort Law Carol Harlow

8. Essentials on Tort Law William P Statsky

9. Implementation of Basic Manoj Kumar Sinha

Human Rights

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10. Black’s Law Dictionary Henry Campbell Black

LIST OF INTERNET SOURCES

Sr.No Name of the Site

1. www.manupatra.com
2. www.westlawindia.com
3. www.wexisnexusindia.com
4. www.heinonline.com
5. www.scconline.com

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STATEMENT OF JURISDICTION

The Plaintiff have the honor to submit before the Hon’ble High Court of Bombay, which has
inherent jurisdiction to try, entertain and dispose of the present case by virtue of The Bombay
High Court (Original Side) Rules, 1980 along with the Section 6 of the Civil Code of
Procedure, 1908.

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STATEMENT OF FACTS

1. In July 2017, Mr. Heisenberg plans a family vacation to Australia, for which he contacted
company providing travel services i.e. Travel Solutions Private Limited (TSPL), as he was
assured by TSPL that the visa process would not take more than 10-15 days.

2. On the advice of TSPL, Mr. Heisenberg booked the tickets for his family from Chennai to Sydney
dated 08.09.2017 instead of Mumbai to Sydney via Singapore.

3. Mr Heisenberg submitted these documents to TSPL on the evening of 11.08.2017 as prescribed

by Mr. Tommen at the reception desk by which time Mr. Tommen had already left the office,
nonetheless he instructed the receptionist to dispatch the documents immediately.

4. On 21.08.2017, Mr. Heisenberg got a call to submit an additional document. Mr. Heisenberg was
furious as his documents were not submitted yet, he was informed that on 12.08.2017 and
13.08.2017 the office was closed because of Second Saturday and Sunday. 14.08.2017 and
15.08.2017 were national holidays. The documents were dispatched on 16.08.2017 and received
only on 18.08.2017. Saturday and Sunday the embassy was closed. On 21.08.2017 upon
verification, they realized that a document was missing.

5. The documents were sent via express couriers on 22.08.2017 and was delivered on 23.08.2017. The
Visa Form was filed on the same day and Embassy issued the visas on 06.09.2017. On Mr.
Heisenberg request to dispatch the passports, TSPL advised that due to paucity of time, passports
would be sent directly to the Chennai airport instead of Mumbai.

6. On 08.09.2017, Mr. Heisenberg along with his family reached Chennai Airport by 14:00 hours.
Unfortunately, the passports reached the airport only by 21:00 and they missed his flight. Mr.
Heisenberg was very furious as he got to know that the flight was non-refundable and he had lost
a lot of money and his family had to undergo the entire ordeal.

7. Out of frustration, he tweeted with a hashtag “#TSPL sucks” and a logo of the company which
got trending next day. The incident drew widespread condemnation on the internet.

8. Mr. Heisenberg sued TSPL before the High Court of Mumbai for negligence claiming a sum
of Rs. 1 Crore for the negligence on the part of TSPL and the same was defended by TSPL on
the ground that issuance of visa is not in their hands and further claimed that Mr. Heisenberg was
responsible for not submitting the documents in order.

9. Further, TSPL filed a counterclaim against Mr Heisenberg claiming the malicious propaganda
amounting to tremendous loss of image suffered by TSPL.

10. The trial has completed and the case is posted for Final hearing.

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STATEMENT OF ISSUES

1. WHETHER TRAVEL SOLUTIONS PRIVATE LIMITED IS LIABLE FOR THE

OFFENCE OF NEGLIGENCE.

2. WHETHER MR. HEINSBERG IS LIABLE FOR DEFAMING THE TRAVEL

SOLUTIONS PRIVATE LIMITED.

3. WHETHER TRAVEL SOLUTIONS PRIVATE LIMITED IS ENTITLED TO PAY

THE COMPESATION OF RUPEES 1 CRORE TO MR. HEINSBERG.

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SUMMARY OF ARGUMENTS

I. WHETHER TRAVEL SOLUTIONS PRIVATE LIMITED IS LIABLE FOR THE

OFFENCE OF NEGLIGENCE?

The arguments under this contention seek to establish that the parameters laid down to
meet the judicial requirements for proving negligence are fulfilled i.e. (i) Reasonable care;
(ii) Breach of Duty and (iii) immediate damage. Furthermore it was very evident from the
actions of the Defendant s that due care was not taken from their end because of which the
Plaintiff had to suffer loss of their flight tickets, hotels booking and the mental trauma
cause to his family.

II. WHETHER MR. HEINSBERG IS LIABLE FOR DEFAMING THE TRAVEL

SOLUTIONS PRIVATE LIMITED?

The Plaintiff takes the defence of Right to Freedom of speech and expression which is
constituted within Article 19 of the Indian Constitution and is given as a Fundamental
Right to all the citizens. Furthermore, the Plaintiff has also relied on the defence of truth
statement. The statement which was published by the Plaintiff was done without any
malice and is a fair comment which was made in interest of the public at large so that
anybody else doesn’t suffer the same losses.

III. WHETHER TRAVEL SOLUTIONS PRIVATE LIMITED IS ENTITLED TO

PAY THE COMPESATION OF RUPEES 1 CRORE TO MR. HEINSBERG?

In the light of the above issue it is submitted by the Plaintiff that there was a proven
negligence in the acts committed by the Defendant as because of their negligent act the
Plaintiff had to bear such a huge loss and his family had to undergo a mental trauma.
Furthermore, since the published statement was a truth and was done for the benefit of
public at large, Mr. Heisenberg is not liable for defamation and therefore, the Defendant
is entitled to pay the damages to the plaintiff.

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ARUGMENTS ADVANCED

I. WHETHER TRAVEL SOLUTIONS PRIVATE LIMITED IS LIABLE FOR THE

TORT OF NEGLIGENCE?

1. The Supreme Court in Rajkot Municipal Corpn. v. Manjulben Jayantilal Nakum1 held that
it could be deduced that the Indian judiciary has expressly accepted the common law
principles of torts as evolved by the courts in England. One has to keep in mind the extent
of the suitability and applicability of such principles of law of torts to Indian conditions.
It is therefore, necessary to consider and evolve our principles in tune with the English
jurisprudence on liability in tort. It was observed by Justice Ramaswamy in the
abovementioned case, that the principles as laid down by the House of Lords should be
the guiding factors for appreciating the law of tortious liability. Hence before one can
proceed any further, it becomes necessary to analyse the common law relating to
negligence as laid down by the House of Lords through the centuries.

2. The term negligence was aptly summed up by Alderson B. in the landmark judgment
of Blyth v. Birmingham Waterworks Co2 as: "Negligence is the omission to do something
which a reasonable man guided upon those considerations which ordinarily regulate the
conduct of human affairs, would do, or doing something which a prudent and reasonable
man would not do."

3. In the present case, The Plaintiff would like to argue that Respondent is liable in the tort
of Negligence for the damages suffered by Plaintiff . In Overseas Tankship (UK)
Ltd. v. Morts Dock and Engg. Co. Ltd,3 it was made clear that three elements are requited
for constituting Negligence: (a) Reasonable care; (b) Breach of that duty and (c)
Consequent damage.4 Therefore, Plaintiff invites the court to examine these three
requirements more closely.

(a) Reasonable Care

1
(1997) 9 SCC 552, at p. 567
2
(1856) 11 Exch 781
3
(1961) 1 All ER 404, at p. 414
4
Dillon LJ in Burton v. Islington HA

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4. Plaintiff believes that the Respondent owed a duty of care towards Plaintiff in order to
provide him a good and care free vacation with his family to Australia and the respondent
shall take care of all the Administrative aspects. In order to determine whether there is a
duty of care, Plaintiff is relying on the basic test established by the Court in the judgment
of Caparo Industries pic v. Dickman5. According to the judgment of Caparo, a duty of
care may now be imposed on, if the following three requirements are satisfied i.e. (i)
damages must be foreseen; (ii) There must be a Relationship of Proximately between the
parties; (iii) it must be Fair, Just and Reasonable in the circumstances for a duty of case to
be imposed on Respondent and (iv) damage should be recoverable under negligence.

(i) Bearing in mind the kind of harm involved, damages should be foreseen:

5. First requirement is satisfied if it must be reasonably foreseeable for Respondent to occur

the damage on Plaintiff . There are two points to consider whether Respondent must be
able to foresee, bearing the kind of harm involved. For establishing the reasonable
foreseeability, two elements are to be satisfied: (1) Respondent must foresee that the
damage is to be caused to a particular Plaintiff rather than just to people in general6. (2)
The duty must relate to a particular kind of harm which Respondent could reasonably
foresee as arising from its actions7.

6. In the present case, Respondent was a company was involved in the services of providing
of travel services and was responsible for providing a carefree travel to the Plaintiff . It is
very evident how Respondent was lacking proper care while processing the visa
application of the Plaintiff . It can be noticed that the documents of visa were to be
scrutinised personally by Mr. Tommen of TSPL before despatching them to Delhi, but
they weren’t scrutinised by Tommen because of which a missing document couldn’t be
located and there was a delay in processing of Visa which in itself is an uncertain activity
as it can be foreseen that by when the visas will be issued.

7. Furthermore, as per the factsheet, on 12 & 13 August the office of TSPL was closed on
account of Second Saturday and Sunday respectively, whereas on 19th August, the

5
UKHL 2,, 2 AC 605
6
Haley v. London Electricity Board
7
Caparo Industries pic v. Dickman

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Embassy was closed on account of Saturday but the Office of TSPL was open and the visa
documents of Mr. Heisenberg could have been evaluated then instead of postponing them
till 21st August.

8. Also it can be inferred that TSPL should have taken substantial care while couriering the
visa documents and passports. As noticed, when the missing document which was
couriered by Mr. Heisenberg from Mumbai to Delhi on 22nd August and was delivered on
23rd August i.e. in a span of one day through express delivery, then in that case even the
TSPL should have considered the importance of the subject matter and should have
couriered the documents of Mr. Heisenbeg using the express delivery services in order to
save time. From the foregoing reasons, Respondent clearly satisfied the abovementioned
two elements, and it can be said that there was a lack of duty of care.

There was a proximate relationship between the parties.

9. Second requirement of Caparo test is the existence of proximate relationship between the
parties. In many cases, proximity and foreseeability are treated as coextensive and even
interdependent. Thus, when Respondent must be able to foresee the damage suffered by
Plaintiff , the proximity is very likely to be satisfied. In addition, proximity means “a
measure of control over and responsibility for the potentially dangerous situation”8

10. In this case, Plaintiff contacted the Respondent for his trip to Australia with his family.
Plaintiff belonged to a category of people who might foreseeably be affected by the acts
of the respondents. Hence, the Plaintiff and Respondent had sufficient proximity and it
can be clearly propounded that the Plaintiff suffered all the losses because of the
Respondent’s negligence is it was Respondent who had put in the request for visa at a later
date, not checked the documents beforehand and gave an advice to receive the passports
at Chennai Airport which eventually was received, but it was too late then. In all the above
situations, loss was suffered by the Plaintiff because of the actions of the Respondent,
which was naturally foreseen by the Respondent and could have been avoided if due care
was taken. Thus, it can be concluded that there exists a proximate relationship between
the parties.

8
[2006] UKHL 33, Sutradhar v. Natural Environment Research Council.

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It is fair, just and reasonable to impose liability on Respondent for its careless actions.

11. Third requirement of Caparo test is that it was fair, just, and reasonable that Respondent
owed a duty of care. However, this requirement usually overlaps with the previous two.
Thus, this requirement is to be examined only when the public order might prevent
Respondent from owing a duty of care.

12. In this case, Respondent would reasonably be able to foresee the damage suffered by the
Plaintiff . So, Respondent was hired by the Plaintiff for the reason that they had expertise
in the said field and would provide Mr. Heisenberg with the advice in their best interest
and good faith, therefore TSPL owed a duty of care towards Plaintiff in order to have
them complete their trip without any hassles. Therefore, in the present case, it is fair, just,
and reasonable that Respondent was imposed with a duty of care.

The damages suffered by Plaintiff can be of the type recoverable under Negligence.

13. The forth sub-requirement is that the damage suffered by Plaintiff can be recoverable. In
this case, the harm suffered by Plaintiff was the sum of Rs. 1 crore which was made
towards cancellation of air tickets, hotel reservations, mental trauma, agony etc. In this
case, the damages claimed by Plaintiff were derived out of the carelessness caused by
Respondent’s conduct. Therefore, Respondent is liable for negligence and the damages
suffered by the Plaintiff can be recovered under negligence from TSPL.

(b) Breach of Duty

14. In this case, Plaintiff believes that Respondent breached a duty of care which Respondent
owed to Plaintiff by fulfilling their agreement and acting up to the desired standards.

15. It was established that Respondent did not satisfy the necessary standard of care. This
standard requires that Respondent should reach the standard of an ordinary person, not a
careful person9. In this case, Respondent could have checked the Visa documents at the
Mumbai office before sending it to the Delhi office and also could have checked it on the

9
Blyth v. Birmingham Waterworks Company

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Saturday which was the date of 19.08.2017 as it was a holiday for the embassy and not for
the Travel Solutions office and initiated the process of application.

16. Furthermore, it was the duty and responsibility of the TSPL to send the passports to the
Chennai airport in time after taking due care about the same, but by the time the passports
reached the airport, flight already took off and the entire vacations of the Plaintiff went to
vane. Being such a reputed travel agency in the country it was expected out of the TSPL
to take due care and act more responsibly and lived up to the brand imaged.

17. Therefore it can be propounded that the Respondent owed a certain amount of Duty of
Care to the Plaintiff and had breached the same duty. Therefore, Respondent breached a
duty of care which it owed to Plaintiff.

(c) Consequent Damage

18. In this case, Plaintiff believes that the conduct of Respondent caused damages to Plaintiff.
Following are the requirements needed to establish existence of causation. Firstly, the
conduct of Respondent was the cause in fact. Secondly, Respondent is responsible for the
probable consequence.

(i) Cause in Fact: the damages suffered by Plaintiff would not have occurred ‘but for’
the conduct of Respondent

19. First requirement is that the conduct of Respondent was a necessary condition of damages
suffered by Plaintiff. In this case, the Respondent assured the Plaintiff that the visa would
be granted easily within a period of 10-15 days and the application for the same was
unnecessarily delayed and secondly they also suggested that the flight from Chennai
would be more feasible than the one from Mumbai and acting on the advice of the
Respondent without revealing it to be a non-refundable one. Therefore, except for the
conduct of Respondent, there seems to be no reason as to how the Plaintiff suffered the
said losses. It is highly probable that Plaintiff’s loss would not have occurred but for the
conduct of Respondent.

(ii) Probable Consequence: Respondent is responsible for the probable consequences of

the conduct of Respondent

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20. Second requirement is that the conduct of Respondent was the main cause of the damage
suffered by Plaintiff. In this case, the Respondent is responsible for the damages suffered
by Plaintiff. In this case, Respondents had the duty to submit the documents for visa
application in after scrutinising all the documents and submitting them in reasonable time
in order to make visa available to Mr. Heisenberg. But on the contrary, due to lack of
carefulness of the Respondent, Mr. Heinsberg suffered the damage. Therefore,
Respondent should be held liable.

II. WHETHER MR. HEINSBERG IS LIABLE FOR DEFAMING THE TRAVEL

SOLUTIONS PRIVATE LIMITED?
21. It is important to understand Defamation and its essentials to prove the absence of malice
and that the publication comes under certain exceptions.

22. As per Black’s Law Dictionary, defamation means “the offence of injuring a person's
character, fame, or reputation by false and malicious statements.” The term seems to be
comprehensive of both libel and slander. Defamation can be divided into the following
categories: Libel – Representation in a permanent form, e.g., writing, printing, picture,
effigy or statute. Slander – Depiction in transient form. It is basically through words
spoken or gestures.

23. In order to establish that a statement is libelous, it must be proved that it is (i) false, (ii)
written; (iii) defamatory, and (iv) published.10 "There is no Statute in India dealing with
civil liability for defamation, the rule of equity, justice and good conscience needs to be
applied. This has been interpreted by the Privy Council in the case of Waghela Rajsanji
Vs. Shekh Masluddin11 to mean the rules of English Law if found applicable to India
society and circumstances." Reference can also be made to the case of T.V. Ramasubba
Iyer and another Vs. A. M. Ahamed Mohideen12 where the Court stated the principle as
follows :

10
Ratanlal and Dhirajlal, The Law of Torts 279 (LexisNexis, New Delhi, 26th edn., 2013).
11
(1889) ILR 13 Bom 330
12
, AIR 1972 MADRAS 398

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".... The law of defamation as part of the law of torts is applied and enforced under the common
law of England is applied to this country only on the basis of justice, equity and god
conscience.”

24. In another case it was decided by the courts that if a person needs to succeed in getting
damages, then following must be established: (1) that the words or the acts must have been
published with a malicious intention, (2) that they are defamatory and (3) that they have
reference to the other person.

25. In the present case, conditions 3rd and 4th are satisfied as the alleged defamatory material
refers to the Defendant and there has been publication of such alleged material on social
networking website i.e., twitter. However, conditions 1st and 2nd have not been fulfilled.
The matrial published falls under the exceptions of Truth and Fair Comment.

26. Malice in common acceptance means ill will against a person but in its legal sense means
a wrongful act done intentionally without just cause or excuse. Absence of proper motive
is termed malice in fact while term malice in law is taken to mean that defamation was
wrongful and intentional. Inference of malice in law is successfully rebutted if the
publisher is able to show that statement was made in the discharge of a public or private
duty. It is immaterial whether that duty is a legal duty or a moral duty.

27. Reliance was placed upon in the case of Rustom K. Karanjia And Anr. v. Krishnaraj M.D.
Thackersey13 and Toogood v. Spyring14, in which it was held that: "In general, an action
lies for the malicious publication of statements which are false in fact, and injurious to the
character of another, and the law considers such publication as malicious, unless it is fairly
made by a person in the discharge of some public or private duty, whether legal or moral,
or in the conduct of his own affairs, in matters where his interest is concerned. In such
cases, the occasion prevents the inference of malice, which the law draws from
unauthorized communications, and affords a qualified defense depending upon the
absence of actual malice. If fairly warranted by any reasonable occasion or exigency and
honestly made, such communications are protected for the common convenience and

13
AIR 1970 Bom 424, (1970) 72 BOMLR 94, ILR 1971 Bom 324
14
149 E.R. 1044 at p. 1049

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welfare of society, and the law has not restricted the right to make them within any narrow
limits."

28. In the present case, the Plaintiff successfully establishes that he stated the truth and that
he considered in his interest to criticize the poor services of the Defendant s at social media
platform so as to let out his dissatisfaction and so that other people would not succumb to
false and unfulfilled promises of the Defendant and end up losing their time and a huge
part of their hard earned money because of negligence of the Defendant .

29. The Plaintiff essentially pleads that there is no defamation and the published material falls
under the exceptions of Truth and Fair Comment.

Whether the Plaintiff was justified in making defamatory statement?

30. In opposed to the counterclaim filed by the Defendant , the Plaintiff pleads the Defense
of Truth and Fair Comment available as exceptions under the Tort of Defamation and the
Right to Freedom of Speech and Expression [Article 19 (1)(a)] guaranteed by the
Constitution of India.

Plaintiff exercised his Right to Freedom of Speech and Expression.

31. The Plaintiff is perfectly justified in expressing his views in open with regards to the
extremely poor service provided by the Defendant s in spite of them assuring that all the
requirements would be complied with well within the time, which unfortunately they
failed in doing. As an aggrieved person, every individual has a right to criticize the service
of the company, for which he pays, if that company fails stand up to its promise.

32. Article 19 (1) (a) of the Constitution guarantees to all citizens right to freedom of speech
and expression which means a right to express one’s opinion either verbally or in writing,
printing, films or any other manner. Under Article 19(2) of the Constitution of India,
reasonable restrictions have been placed on the exercise of the said right to freedom of
speech and expression, in the interest of sovereignty and integrity of India, security of the
State, friendly relations with foreign States, public order, decency or morality or in relation
to contempt of Court, defamation or incitement to an offence. The importance of this
freedom cannot be over emphasized as it forms a part of the fundamental rights which are

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the touchstone of our democratic setup, and the Apex Court has also time and again
reiterated its primacy.

33. In the celebrated pronouncement of Indian Express Newspapers (Bombay) v. Union of

India15, the Apex Court held that the freedom of expression is the first condition of liberty
and it occupies a preferred position in the hierarchy of liberties giving succor and
protection to other liberties. The Apex Court in the case of Life Insurance Corporation of
India & Union of India v. Prof Manu Bhai D.Shah & Cinemart Foundation16, also held
that the freedom of speech is a basic human right and held as under:
"Everyone has the right to freedom of opinion and expression; the right includes freedom
to hold opinions without interference and to seek and receive and impart information and
ideas through any media and regardless of frontiers" proclaims the Universal Declaration
of Human Rights (1948).

34. The court in the case of Ram Jethmalani v. Subramaniam Swamy17 explained the defenses
of truth, fair comment and privilege available in a suit for defamation as “Traditional
defenses to an action for defamation have now become fairly crystallized and can be
compartmentalized in 3 compartments : truth, fair comment and privilege.”

Plaintiff made a fair comment so as not to constitute Defamation.

35. It is argued on behalf of the Plaintiff that the words complained of in this matter are really
not defamatory of the Defendant Company, but are only a fair and bona fide comment on
a matter of public interest.

36. What constitutes to fair comment can be seen from the below:18

"Any facts sufficient to justify that statement would entitle to succeed in a plea of
fair comment. Twenty facts might be given in the particulars and only one justified,
yet if that one fact were sufficient to support the comment so as to make it fair, a

15
AIR 1986SC872
16
AIR 1993SC 171
17
126 (2006) DLT 535
18
Odgers on Libel and Slander (6th ed., 1929), at p. 166

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failure to prove the other nineteen would not of necessity defeat the Defendant s'
plea."

37. In the present case, the facts are that, the Defendant failed to provide the service as
promised. They also failed to check the documents as required by them within the time
period from 12.08.2017 to 20.08.2017, especially on the date of 19.08.2017 when their
office was open. Their sheer carelessness in this regard led them realizing this error on
21.08.2017 instead of 19.08.2017. This led to series of events which ultimately resulted in
Plaintiff and his family missing the flight as there was a delay in obtaining passport which
resulted in costing a huge monetary loss to him. All these acts show inefficient work of
the company and poor services provided by them. This unprofessional attitude of the
Defendant induced the Plaintiff in letting out the disappointment and the frustration on
the internet, where he gave feedback on the services of the company. The Plaintiff states
that all these facts, series of events are sufficient to justify the statement made on internet
and entitles the Plaintiff to succeed in his plea of defence of fair comment.

38. Therefore, what is necessary is that all the facts on which the comment is based should be
stated. The facts of the case clearly state that the Plaintiff uploaded a picture of his entire
family stranded at the airport with a detailed post. Here, the ‘detailed post’ complies with
the requirement of stating facts on which the comment is based.19

39. “The aspect of the fair comment and the extent of fair comment is therefore, clearly laid
down. The motives of the publisher are also required to be considered. They should be
warranted by the facts. There should be absolute allowance of expression once the
publisher in a bonafide way believed the facts to be true. In this case the publication is
warranted by the facts.”20 Mere exaggeration or even gross exaggeration would not make
the comment unfair.21

19
Kemsley Vs. Foot and Ors 1952 AC 345 HL
20
Kokan Unnati Mitra Mandal & Ors vs Bennet Colemna & Co. Ltd. & Ors
21
Merivale v. Carson, (1887) 20 QBD 275, which overruled the case of Henwood v. Harrison, (1872) 7 LRCP
606 and followed Cambhell v. Spottiswoode, (1863) 3 B&S 769: 32 LJQB 185. See, South Hetton Coal Co. v.
N.E. News Assn., (1894) 1 QB 133(143)

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40. The term "public good", “public interest” is a vague concept. 22 In the case of London
Artists Ltd. v.. Littler23 it was observed that “whenever a matter is such as to affect people
at large, so that they may be legitimately interested in, or concerned at, what is going on;
or what may happen to them or to others; then it is a matter of public interest on which
everyone is entitled to make fair comment.” Similarly in the light of the present case The
Plaintiff considered in his and public interest to criticize the poor services of the
Defendant s at social media platform so that other people would not succumb to false and
unfulfilled promises of the Defendant and end up losing their time and a huge part of their
hard earned money.

41. The Plaintiff has shown and proved the fair comment made by them in public interest. It
is therefore argued on behalf of the Plaintiff that the words complained of are really not
defamatory of the Defendant Company, but are only a fair and bona fide comment on a
matter of public interest. And as laid down, if the words are such comment, they are not
actionable.24

Plaintiff published true statements.

42. The truth of defamatory words is a complete defence to an action of libel or slander though
it is not so in a criminal trial.25 But it is not necessary to justify every detail of the charge
or general terms of abuse, provided that the gist of the libel is proved to be in substance
correct, and that the details, etc., which are not justified, produce no different effect on the
mind of the reader than the actual truth would do.26

43. In the present case, the facts clearly show how disorganized the company was in getting
the visa issued within time. The Defendant Company assured that the visa would be issued
within time and advised the Plaintiff to book a flight from Chennai to Sydney (non-
refundable) instead of Mumbai to Sydney (refundable). They failed to provide the
complete list of documents and failed to check the documents received by them within the

22
Subramanian Swamy v Union of India, Ministry of Law and others 2016 AIR(SC) 2728
23
[1969] 2 QB 375 CA
24
Union Benefit Guarantee Company Limited v Thakorlal P. Thakor and Others AIR 1936 BOM 114
25
Raghunath Damodhar v. Janardhan Gopal, (1891) 15 ILRBom 599; Reynolds v. Times Newspapers, (1999) 4
All ER 609, p. 614(HL), Joseph M. Puthussery v. T.S. John, (2011) 1 SCC 503
26
PER LORD DENMAN in Cooper v. Lawson, (1838) 8 AD&E 746(1838) 8 AD&E 746, 753; Dainik Bhaskar
v. Madhusudan Bhaskar, AIR 1991 MP 162, p. 168

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time period from 12.08.2017 to 20.08.2017, especially on the date of 19.08.2017 i.e.
Saturday when their office was open. The fact that the Defendant Company was in
business for a long time, develops trust in the company, in the sense that the client is
relieved with regards to the responsibility the company promises to undertake. Plaintiff
trusted the Defendant who grossly defaulted in discharging its liability due to sheer
negligence and reckless behavior in not anticipating the imminent holidays which an entity
long in business would clearly have. Had the Company been cautious and responsible in
issuance of visa, it would have easily realized the continuous forthcoming holidays during
which the embassy would remain closed and then, would not have advised the Plaintiff to
book a non-refundable flight after assessing the possible delay in issuance of visa.

44. The Plaintiff due to Defendant ’s negligence lost a huge amount of money in flight and
hotel bookings and was left stranded at the airport with his family. All the frustration due
to the carelessness of the Defendant induced him to resort to social media to express his
frustration with a detailed post placing the blame on the company, where he has explained
the truth and nothing else, narrating the whole incident in which the Defendant Company
grossly failed to provide the services. The Defendant (here, Plaintiff ) is entitled to plead
justification of any alternative meaning which those words are reasonably capable of
bearing.27

45. Even if there is an apprehension that content may be of a defamatory nature, it is likely
that publication would not be restrained except in exceptional cases. In non-exceptional
circumstances, Indian courts have shown a tendency to support free speech, and have not
displayed a tendency to grant injunctions which would have the effect of muzzling speech
on the ground of possible defamation.28

46. It is argued that the terms used by Plaintiff namely ‘sucks’ according to Collins and
Oxford Dictionary means ‘bad at something’. Here, the Defendant failed in providing
proper services. The word ‘liar’ according to the Collins and Oxford Dictionary means
‘someone who tells a lie’. The word ‘cheat’ according to Collins Dictionary means ‘they
do not obey a set of rules which they should be obeying’. The word ‘thief’ according to
Collins Dictionary means ‘person who steals. As already mentioned above, the gist of the

27
Prager v. Time Newspapers Ltd., (1988) 1 All ER 300 : (1987) 132 SJ 55(CA) .
28
Khushwant Singh v. Maneka Gandhi. AIR 2002 Delhi 58

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liable in substance should be correct. And by those words the Plaintiff meant that the
Defendant Company made promises which it couldn’t fulfill due to its negligence and
carelessness which led to them losing a lot of money.

47. Thus, the Plaintiff pleads that the publication comes within the exceptions of Truth and
Fair Comment and therefore, does not amount to defamation. There was absence of malice
and therefore the counterclaim of the Defendant fails.

III. WHETHER TRAVEL SOLUTIONS PRIVATE LIMITED IS ENTITLED TO

PAY THE COMPESATION OF RUPEES 1 CRORE TO MR. HEISENBERG?

48. It has been proved by the Plaintiff in the above two issues that the Defendant is liable for
Defamation and Negligence. All the essentials for both the torts have been met.

Negligence:

49. In Overseas Tankship (UK) Ltd. v. Morts Dock and Engg. Co. Ltd,29it was made clear
that three elements are required for constituting Negligence: (a) Reasonable care; (b)
Breach of that duty and (c) Consequent damage.30

50. The Respondent owed a duty of care towards Plaintiff which it breached. To establish
reasonable care, the following three requirements which have to be satisfied are i.e. (i)
damages must be foreseen;(ii) There must be a Relationship of Proximately between the
parties; (iii) it must be Fair, Just and Reasonable in the circumstances for a duty of case to
be imposed on Respondent and (iv) damage should be recoverable under negligence which
have been satisfied as under. All these ingredients are satisfied as will be seen below.

51. The documents for visa were to be scrutinised personally by Mr. Tommen of TSPL before
despatching them to Delhi, but this wasn’t done due to which a missing document couldn’t
be located and there was a delay in processing of Visa which in itself is an uncertain
activity. Further, instead of scrutinizing the documents on 19th August, it was postponed

29
(1961) 1 All ER 404, at p. 414
30
Dillon LJ in Burton v. Islington HA

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to 21st August. The TSPL should have considered the importance of the subject matter
and should have couriered the documents of Mr. Heisenbeg using the express delivery
services in order to save time.

52. For establishing satisfaction of the second ingredient, it is stated that the Plaintiff
contacted the Respondent for his trip to Australia with his family. Plaintiff belonged to a
category of people who might foreseeably be affected by the acts of the respondents.
Hence, the Plaintiff and Respondent had sufficient proximity and it can be clearly
propounded that the Plaintiff suffered all the losses because of the Respondent’s
negligence is it was Respondent who had put in the request for visa at a later date, not
checked the documents beforehand and gave an advice to receive the passports at Chennai
Airport which eventually was received, but it was too late then.

53. Respondent was hired by the Plaintiff for the reason that they had expertise in the said
field and would provide Mr. Heisenberg with the advice in their best interest and good
faith, therefore TSPL owed a duty of care towards Plaintiff in order to have them complete
their trip without any hassles.

54. The harm suffered by Plaintiff was the sum of Rs. 1 Crore which was made towards
cancellation of air tickets, hotel reservations, mental trauma, agony etc. In this case, the
damages claimed by Plaintiff was a result of sheer carelessness of Respondent.

55. The second condition of establishing negligence, i.e., the breach of duty by the Defendant
is satisfied as, it was the responsibility of the TSPL to send the passports to the Chennai
airport in time, but by the time the passports reached the airport, flight already took off
and the entire vacation of the Plaintiff went into vane. Being such a reputed travel agency
in the country, it was expected from the TSPL to take due care and act more responsibly
and live up to the brand image.

56. The third and the last condition is also fulfilled as it was the Respondent who assured the
Plaintiff that the visa would be granted easily within a period of 10-15 days, the
application for which was unnecessarily delayed by the Defendant Company’s
carelessness. Secondly, they also suggested that the flight from Chennai would be more
feasible than the one from Mumbai and acting on the advice of the Respondent without
revealing it to be a non-refundable one. Therefore, except for the conduct of Respondent,

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there seems to be no reason as to how the Plaintiff suffered the said losses. Also, the fact
that the Defendant Company ‘profusely’ apologized for their mistake of not efficiently
providing the list of documents, clearly shows that the Defendant knew that it was at fault.
Therefore, considering the above arguments, the Plaintiff concludes that the Defendant
is liable for the tort of Negligence.

Defamation:

57. Plaintiff asserts that he did not defame the Defendant , as seen above, as all the essentials
of Defamation are not met. In order to establish that a statement is libelous, it must be
proved that (1) that the words or the acts must have been published maliciously, (2) that
they are defamatory, (3) that they have reference to the Plaintiff , and (4) that they have
been published.31

58. In the present case, conditions 3rd and 4th are satisfied as the alleged defamatory material
refers to the Defendant and there has been publication of such alleged material on social
networking website i.e., twitter and facebook. However, conditions 1st and 2nd have not
been fulfilled. The material published falls under the Freedom of Speech and Expression
[Article 19(1)(a)], and defenses of Truth and Fair Comment. Plaintiff had no malicious
intentions.

59. Malice in its legal sense means a wrongful act done intentionally without just cause or
excuse. Inference of malice in law is successfully rebutted if the publisher is able to show
that statement was made in the discharge of a public or private duty. It is immaterial
whether that duty is a legal duty or a moral duty.32 The Plaintiff considered in his interest
and a moral duty to criticize the poor services of the Defendant s at social media platform
so that other people would not succumb to false and unfulfilled promises of the Defendant
and end up losing their time and a huge part of their hard earned money. Therefore, there
was absence of malicious intent.

31
Radheshyam Tiwari vs Eknath Dinaji Bhiwapurkar AIR 1985 Bom 285
32
Radheshyam Tiwari v Eknath Dinaji Bhiwapurkar and Others AIR 1985 BOM 285

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60. The truth of defamatory words is a complete defence to an action of libel or slander though
it is not so in a criminal trial.33 But it is not necessary to justify every detail of the charge
or general terms of abuse, provided that the gist of the libel is proved to be in substance
correct, and that the details, etc., which are not justified, produce no different effect on the
mind of the reader than the actual truth would do.34 The Plaintiff due to Defendant ’s
negligence lost a huge amount of money in flight and hotel bookings and was left stranded
at the airport with his family. All the frustration due to the carelessness of the Defendant
induced him to resort to social media to express his frustration with a detailed post placing
the blame on the company, where he has explained the truth and nothing else, narrating
the whole incident in which the Defendant Company grossly failed to provide the services.

61. The Apex Court in the case of Life Insurance Corporation of India & Union of India v.
Prof Manu Bhai D.Shah & Cinemart Foundation35, held that the freedom of speech is a
basic human right and held as: "Everyone has the right to freedom of opinion and
expression; the right includes freedom to hold opinions without interference and to seek
and receive and impart information and ideas through any media and regardless of
frontiers". The Plaintiff is perfectly justified in expressing his views in open with regards
to the extremely poor service provided by the Defendant s in spite of them assuring that
all the requirements would be complied with well within the time, which unfortunately
they failed in doing. As an aggrieved person, every individual has a right to criticize the
service of the company, for which he pays, if that company fails to provide what it
promises to.

62. Thus, the Plaintiff pleads that the publication falls under Freedom of Speech and
Expression, and the defences of Truth and Fair Comment and the statement made by the
Plaintiff was for the favor of public interest. Therefore, does not amount to defamation.
There was absence of malice and therefore the counterclaim of the Defendant fails.

33
Raghunath Damodhar v. Janardhan Gopal, (1891) 15 ILRBom 599; Reynolds v. Times Newspapers, (1999) 4
All ER 609, p. 614(HL), Joseph M. Puthussery v. T.S. John, (2011) 1 SCC 503
34
PER LORD DENMAN in Cooper v. Lawson, (1838) 8 AD&E 746(1838) 8 AD&E 746, 753; Dainik Bhaskar
v. Madhusudan Bhaskar, AIR 1991 MP 162, p. 168
35
AIR 1993SC 171

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PRAYER

Therefore, in the light of the issues raised, arguments advanced, reasons given and
authorities cited, it is humbly prayed before the Tribunal to adjudge and declare:

I. That the Defendant i.e. the Travel Services Private Limited is liable for the offence
of Negligence.

II. That the act of posting on social media by the Plaintiff does not amount to
Defamation.

III. That the Travel Solutions Private Limited is liable for the offence of Negligence
and is entitled to pay the damages worth Rupees 1 Crore.

The Hon’ble High Court may also be pleased to pass any other order, which it may deem fit
in light of justice, equity and good conscience.

All of which is respectfully submitted.

SD/-

(Counsels for the Plaintiff )

MEMORANDUM ON BEHALF OF THE PLAINTIFF