Fomentos claim Rs.500 Crores as damages for defamation at Calcutta High Court

Suit No. of 2008
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION


SOCIEDADE DE FOMENTO INDUSTRIAL PVT. LTD., a company registered under the Companies Act, 1956 having its Registered Office at Vila Flores da Silva, Erasmo Carvalho Street, Margao-Goa, 403 601

PLAINTIFF

-Versus-

SEBASTIAN alias SEBI Rodigues, 34 years of age, resident of Near Siolim Govt. Health Centre Igrejawaddo, Siolim, Bardez Taluka Goa, outside jurisdiction of this Hon’ble Court.

DEFENDANT


THE PLAINTIFF STATES THAT:-

1. The plaintiff is a company incorporated under the Companies Act, 1956 having his Rigistered Office at Villa Flores da Silva, Erasmo Carvalho Street, Margao – Goa – 403 601 outside the jurisdiction of this Hon’ble Court.

2. The Fomento group was started in 1957 and is one of the largest industrial houses in Goa with diversified activity like mining and export and is also in hospitality business and today has a number of sister companies operating under its umbrella like M/s. Hardesh Ores Private Limited, Infrastructure Logistics Private Limited, Prime Mineral Exports Private Ltd. Fomento (Karnataka) Mining Company Private Limited, etc. The Plaintiff operates various mines in Goa, Karnataka and Maharashtra and is on the threshold of opening new mines in Andhra Pradesh and South Africa and is also providing infrastructure and logistic support to various other leading mining companies in India with special focus on Iron Ore. Having considered the mining operations by the late Sixties, the plaintiff initially went into a spree of mining related diversifications and today fomento Group has in its fold mining, river fleet operations and a five star luxury beach resort at Panaji Goa known as Cidade de Goa.

3. The plaintiff has earned huge goodwill in and outside India and commands huge respect from all concerned for its unblemished law abiding track record for such a long period.

4. Wherever the plaintiff take up mining activities all necessary legal formalities and/or requirements are maintained in the most strict sense by executing mining lease, necessary consent from different authorities and on the basis of NOC from various authorities under the specific acts applicable and specimen copies of such documents being (a) Mining Lease (Form K) (b) Application for renewal of mining lease (FormJ) (c) Environmental Clearance granted by the Ministry of Environment and Forests (d) Consent to Establish (NOC) (e) Consent of Operate granted by the State Pollution Control Board in terms of Air (Prevention and Control of Pollution) Act, 1981 along with renewal (f) Consent to Operate granted by the State Pollution Control Board in terms of water (Prevention and Control of Pollution) Act, 1974 (g) Approval from Indian Bureu of Mines are annexed hereto and collectively marked with letter “A” as part of this plaint.

5. The details of the mines which are being operated at Colomba and Advalpal against which defamatory articles have been written are as follows:-

Name of the Lessee – Hiralal Khodidas (presently being operated by the Plaintiff and its sister concerns M/s Hardesh Ores pvt. Ltd.)

Name of the mining concession – Gogoro Ore Gulcan Dongor mineral – Extracted from the said Mine iron and manganese ore.

Title Concession- of the mine bearing No. 6 of 11.7.1949

Area covered by the Said Mine – 70.1870 Hectares.

Location – Colomba Village of Sanguem taluka.

NAME OF THE LESEES: M/S. LITHO FERRO (Presently being operated by the sister concerns of Fomento Group Infrastructure Logistics Pvt. Ltd. And Prime Minerals Exports Pvt. Ltd.)

Name of the Mine: Calsanicho Mato De Oilomol Mine

MAP No. 292

T.C. No. 89 of 07.11.1952.

AREA -47.30 hectare.

Location – Advalpal Taluka Bicholim

6. In terms of such documents the plaintiff has his rights reserved as follows:-

To enter upon land and search for win work etc.

(a) Liberty and Power at all times during the term hereby demised to enter upto the said land and to search for mine, bore, bid, drill, for win, work, dress, process, convert, carry away and dispose of the said minerals/minerals.

To sink drive and make pits shafts and inclines etc.

(b) Liberty and power for or in connection with any of the purposes mentioned in this part to sink, drive, make, maintain and use in the said lands any pits, shafts, inclines, drifts, levels, waterways and airways and other works (and to use, maintain, deepen or extent any existing works of the like nature in the said lands)

To bring and use machinery equipments etc.

(c) Liberty and power for or in connection with any of the purpose mentioned in this part to erect, construct, maintain and use on or under the said lands any engines, machinery, plant, dressing, floors, furnaces, coke, ovens, brick-kilns, workshops, store-houses, bungalows, godowns, sheeds and other buildings and other works and convenience of the like nature on or under the said lands.

To make roads and ways etc. and use existing roads and ways:

(d) Liberty and power for or in connection with any of the purpose mentioned in this part to make any tramways in or over the said lands and to use maintain and go and repass with or without horses, cattle, wagons, aircrafts locomotives or other vehicles over the same (or any existing tramways, railways, roads and other ways in or over the said lands) on such conditions as may be agreed to.

To get building and road materials etc.

(e) Liberty and Power for or in connection with any of the purposes mentioned in this part to quarry and get stone gravel and other building and road materials and clay and to use and employ the same to manufacture such clay into bricks or tittles and to use such brick or tiles but not to sell any such materials bricks or tiles.

To use water from streams etc.

(f) Liberty and power for in connection with any of the purposes mentioned in this part but subject to the rights of any existing or future lessees and with the written permission of Deputy Commissioner/Collector to appropriate and use water from any stream, water-courses, springs or other sources in or upon the said lands and to divert step up or dam any such stream or water course and collect or impound any such water and to make construct and maintain any water course, culverts, drains or reservoirs but not so as to deprive any cultivated lands, villages, buildings or watering places for livestock of a reasonable supply of water as before accustomed nor in any way to foul or pollute any stream or springs. Provided that the lessee/lessees shall not interfere with the navigation in any navigable stream nor shall divert such stream without the previous written permissions of the State Government.

To use land for stacking, heaping or depositing purposes:-

(g) Liberty and power to enter upon and use a sufficient part of the surface of the said lands for the purpose of stacking heaping, storing or depositing therein any produce of the mines or words carried on and any tools, equipment, earth and materials and substances dug or raised under the liberties and powers mentioned in this part.

Beneficiation and conveying away of production :

(h) Liberty and power to enter upon and use a sufficient part of the said lands to beneficiate any or produced from the said lands and to carry away such beneficiated ore.

To make coke (To be used in case of coal only)

(i) Liberty and power upon the said lands to convert into coke any coal dust produced from the said land and to carry away such coke.

To clear brushwood and to fell and utilize trees, etc:

(j) Liberty and power for or in connection with any of the purposes mentioned in this part and subject to the existing right of others and save as provided in clause 3 of part III of this schedule to clear undergrowth and brushwood and to fell and utilize any trees or timber standing or found on the said lands provided that the State Government may ask the lessee/lessees to pay for any tress or timber felled and utilized by him/them at the rates specified by Deputy commissioner/collector or the State Governement.

7. In terms of each documents the plaintiff has to follow restrictions and conditions as to the exercise of the liberties, powers and privileges given under such lease documents as follows:-

No building etc. upon certain places:-

a. No building or thing shall be erected set up or placed and no surface operations shall be carried on in or upon any public pleasure ground burning or burial ground or place held sacred by and class of persons or any house or village site public road or other place which the State Government may determine as public ground for in such a manner as to injure or prejudicially affect any buildings, works, property or rights of other persons and no land shall be used for surface operations which is already occupied by persons other than the State Government for work or purposes not included in this lease. The lessee/Lessees shall not also interfere with any right of way well or tank.

b. permission for surface operation in a land not already in use.

Before using for surface operations any land which has not already been used for such operations, the Leasee/Lessees shall give to Deputy Commissioner/Collector of the District tow calendar months previous situation and the extend of the land proposed to be used and the purpose for which the same is required and the said land shall not be so used if objection is issued by the Deputy Commissioner/Collector within two months after the receipt by him of such notice unless the objections so stated shall be reference to the State Government be annulled or waived.

To cut trees is unreserved Lands

c. The Lessee/Lessees shall not without the express sanction of the Conservator of Forest cut down or injure any timber or trees on the said lands but may without such sanction but subject to the provisions of the preservations of Trees Act, 1984 clear away any brushwood or undergrowth which Interfere with any operations authorized by these presets. The Conservator of Forests may require the lessee/Lessees to plant and maintain five trees for every tree cut and also to pay for any tree or timber felled and utilized by him/them at the rates specified by the Conservator of Forests.

d. To enter upon reserved forests.

Notwithstanding anything in this Schedule contained the Lessee/Lessees shall not enter upon any reserved forests included in the said lands without previous sanction in writing of the District Forest Officers nor fell out and use any timber of trees without obtaining the sanction in writing of that officer nor otherwise than in accordance with such conditions as the State Government may prescribe.

e. The lessee/Lessees shall not work or carry or allow to be worked or carried on any mining operations at or to any point within a distance of 50 meters from any railway line except with the previous written permission of the Railway Administration concerned or under the beneath any ropeway or any ropeway trustle or station except and in accordance with the written permission of the authority owing the ropeway or from any reservoir, canal or other public works such as public roads and buildings or inhabited site except with the previous written permission of the Deputy Commissioner / Collector or any other officer authorized by the State Government in this behalf and otherwise than in accordance with such instructions restrictions and conditions either general or special which may be attached to such permission. The said distance of 50 metres shall be measured in the case of railway reservoir or canal horizontally from the outer of the bank or the outeradge of the cutting as the case my be and in case of a building horizontally from the plinth thereof. In the case of village roads no working shall be carried on within a distance of 10 metres of the outer edge of the cutting except with the previous permission of the Deputy commissioner/Collector or any other officer duly authorized by the State Government in this behalf and otherwise than in accordance with such directions, restrictions and additions either general or special which may be attached to permission.

f. Facilities for adjoining Government licenses as leases:-

The Lessee/Lessees shall allow existing and future holders of the Government Licence over any land which is comprised in or adjoins or is reached by the land held by the Lessee/Lessees reasonable facilities of access thereto provided that no substantial hindrance shall be caused by such holders of licences or leases to the operations of the Lessee/Lessees under these presents and fair compensation (as may be mutually agreed upon or in the event of disagreement as may be decided by the State Goverments) shall be made to the Lessee/Lessees for all loss or damage sustained by the Lessee/Lessees by reason of the exercise of this Liberty.

8. Under the said document duly executed plaintiff is required to give specific covenants, inter alia, for paying rents and royalties taxes etc. maintaining and keep boundary marks in good order, to commence operation within a year and work in a workman like manner, to indemnify government against all claims, to secure and keep in good conditions, pits, shafts etc. to strengthen and support the mine to necessary extend, to allow inspection of working, to report accidents, to report discovery of other minerals, to maintain plan, to provide weighing machine and to allow test thereof, to pay compensation for injury of third partes, not to obstruct working of other minerals, not to transfer lease and to deposit additional amount if necessary, to keep the right of preemption of the Government preserved, not to employ any foreign national for mining work and to reimburse this Government any expense incurred and for furnishing geophysical data. Accordingly, considering the seriousness of the business plaintiff is well restricted so far the interest of Public at large by the Government.

9. It is pertinent to mention that the plaintiff as sub-lessee takes over the right of the lessees and are in law supposed to abide by the terms and conditions of the Lease Agreements and/or restrictions stipulated thereby to operate in respect of such mentioned specifically in the operational agreements.

10. It is stated that there has not been any charge of violation of any rule of law and/or terms and conditions of the lease as stipulated by the Government for the purpose as against the plaintiff is concerned and it has all along been maintained by the plaintiff to carry on its business within the ambit of the rule of law.

11. The defendant is claiming himself to be environmental activist and part of Non-Governmental Organisation and is engaged, inter alia, in maintaining a Website www.mandgoa.blogspot.com and are ingaged in publishing circulated news items made by them through the said Website which has circulation allover India including city of Kolkata.

12. The defendant has for quite some time been creating unwanted unwarranted obstruction to the smooth functioning of the plaintiff at Colomba an Advalpal mines for which various proceedings followed and all such proceedings have gone in favour of the plaintiff. Necessary documents in support of this contention are annexed hereto and collectively marked with letter “B”.

13. From April, 2008 onwards the defendant has been publishing various news items in his aforesaid Blog/Website as against the plaintiff containing wholly false and grossly defamatory statements which are being made/published with the object to maligning and vilifying the plaintiff in the eyes of general public.

14. Some of the extracts of the said false news items published by the defendant in his Blog/Webside which are defamatory in nature are quoted hereunder:-

A. Fomento mining Company, mining disasters are normal and a part of its Trade.

B. Fomentos achieved this disastrous feat again on August 09, 2008 releasing silt into People’s agriculture.

C. We can never let any mining company to make disasters as normal practice of operations. If it does so then they have no right to operate the mine. It has to be shut down once for all.

D. Fomentos response with its security was like it was cover up murder secrets with investigations on freshly buried corpses. Oh yes, Fomentos perhaps has awaken to the fact that its mining practices in Pissurlem, Advalpal, Colamb and all other mines is actually equivalent of murder.

E. Dangers to our houses due to “Fomento Mines”.

F. State machinery including the police has become the extended arm of the mining companies. It is interesting to note that in spite of police complaint against Fomento mining company for destroying their agriculture neither officials nor managing director or Fomentos have ever been arrested. This is clear indication as to on whose side State Machinery in Goa is operating at present. State Machinery including the police has become the extended arm of the mining Companies in Goa.

G. All the authorities have failed to protect Colamb Villagers and Fomentos Continue to enjoy filed day with State protection to destroy Goa’s ecology and livelihood of its people. Fomentos like all other mining companies are making sure mining dozers forever.

H. All this, Villages allege was done at the instance of Fomento mining Company that is known to use Police for the private purpose of Profit maximization.

I. Goa Federation of Mines Affected People (GOAMAP) strongly condemns Goa Police connivance with Fomento mining Company.

J. GOAMAP also urges Goa Police not to dance to the tune of mining companies such as Fomentos and go about harassing people that are contributing to their salaries as public servants.

K. Fomentos are avid Portuguese loyalist as they were awarded mining leases by earstwhile Portuguese colonial and continue to be loyal till date. In fact its boss and Managing Director Audooth Timblo is list to be present for Portuguese Government’s function today and tomorrow evening.

15. From the extracts of the said news items which are quoted above it is apparent that the sole objective behind having such false news items published is to knowingly and deliberately maligning and/or vilifying and/or disparaging the plaintiff which has tarnish image of the plaintiff in the eyes of millions of people in India and abroad incuding shareholders and viewers. In this connection it may be pertinent to mention that such website is accessible from any corner of the world through internet.

16. The fact that the aspersions and/or insinuations made against the plaintiff is unfounded, untrue and without any basis whatsoever would be evident from the following facts and/or documentary evidence as stated hereinbelow:-

A. From its inception i.e. for the last 50 years, the Plaintiff is not having any recorded incident of major disaster.

B. Without the unblemished record of the plaintiff, the plaintiff would not have been allowed to function as in case of each renewal of lease all sanctions of the statutory authorities including Ministry of Government and Forest, Pollution Control Board, Indian Bureau of Mines which are already appended to hereinabove.

C. As part of Corporate Social Responsibility the plaintiff has been involved in looking after the interest of the entire community living around the mining site covering all the villages. In this connection the profile of the company would show the activities of the company including environmental and/or social protection taken by the company.

D. As regards allegation of “Covering up murder secrets etc” it is usual exaggerated statement in as two trespassers illegally trespassed into the mining site of the plaintiff and were stopped for identification by the security personnel who failed to give any such identification and later on they transpired to be the agents of the defendant. The company duly filed a police complaint for such trespass and connected papers are lying with the plaintiff which may be produced at the appropriate time.

E. All allegations are unfounded baseless and made with ulterior motive as will be evident from Court orders passed by the Hon’ble High Court of Bombay at Goa and the civil Judge Sr.Division Quepem and the Civil Judge Sr. Division Bicholim wherein the Hon’ble Courts had to interfere as the defendant through his men, servants and agents tried to stall mining activities at different mining sites of the plaintiff. The plaintiff has also got a letter issued by Deputy Collector in respect of Colamb mine certifying that the soil of the fields surrounding the said mine was not polluted because of the mining activities of the plaintiff so as to have any effect on agriculture s has been alleged by the defendant. Incidentally the plaintiff has also received Award for Environment Safety and Protection from the appropriate authority.

The documents as stated above are annexed hereto and collectively marked with letter “C” as part of this plaint. From such clarifications and/or statements made hereinabove the allegations and/or insinuations and/or aspersions against the plaintiffs are unfounded and without any base whatsoever.

17. All along the plaintiff has been protecting their interest in accordance with law such baseless, unfounded, defamatory statements and/or illegal actions being taken by defendant through their men, servants and agents but recently the plaintiff has suffered irreparable loss of goodwill and reputation of the plaintiff in the business as is evident from letters received by the plaintiff from various companies in connection with such baseless allegations which are annexed hereto and marked with letter “D” as part of this plaint. Besides plaintiff has been receiving various queries from notable parties such as Shyam Sel Ltd. Swati Udyog limited etc. in respect of which plaintiff was on verge of striking the deal but has suffered irreparable loss and prejudice because of such illegal wrongful baseless unfounded defamatory allegations made by the defendant.

18. By publishing such false defamatory derogatory statements in his Blog/Website the defendant has acted not only in an utterly irresponsible manner but also with malafide intention.

19. The sum and substance of the defamatory statements as stated hereinabove and/or as annexed hereto reveal that the defendant is bent upon initiating a vicious, malicious campaign against Fomento group of Companies obviously at the behest of the interested parties and/or business competitors for wrongful gains. The basic idea of putting of such malicious defamatory statements on baseless unfounded cooked up stories are result of a st up arranged by some unknown competitor through the defendant as against the plaintiff. The statement made from time to time on blog/website which are baseless, unfounded, malicious, defamatory and wilful deliberate attempt ate annexed hereto and marked with letter “E” which will prove that such a illegal wrongful step has been taken with sole object to tarnish the image and goodwill of the plaintiff which are an asset for the plaintiff to build up such a huge corporate group.

20. The plaintiff states that the defendant has been using the electronic media as against the plaintiff after physical obstructions from site to site become futile and declared illegal by the administration as well as judiciary.

21. The plaintiff states that the entire reports as published in the website are cooked up, false, incorrect and fabricated for the obvious dubious reasons.

22. The cause of action of the plaintiff against the defendants is the publication of the false and defamatory articles in the said blog/website called www.mandgoa.blogspot.com which are being published by the Defendant and is accessible from any corner of the worl through internet and that the same is widely circulated and made available to the readers within and outside India including to those who are residents of Kolkata both within and outside jurisdictions of this Hon’ble Court, readers would mean and include browers. Therefore, the said website is read and browed in the city of Kolkata by readers residing within and outside the jurisdiction of this Hon’ble Court. Therefore , a part of cause of has no doubt arisen within the jurisdiction.

23. As stated here in above the part of cause of action namely printing and publishing the said defamatory statement against the Plaintiff is being carried by the defendant at Goa outside the jurisdiction of this Hon’ble Court. Further, as business outside the jurisdiction of this Hon’ble Court.

24. The plaintiff states that as aforesaid the defendant is coming under the legal terminology of publishing defamatory matters known to some person other than the person defamed and as stated hereinabove the electronic media widely circulated in the city of Calcutta situated both within and outside the jurisdiction of this Hon’ble Court and consequently the defamatory articles published by the defendant against plaintiff has been made known to the readers/browers of the said blog/Website in Kolkata both within and outside the jurisdiction of this Hon’ble Court therefore, a part of a cause of action has risen in Kolkata for which an action for libel and slander against the defendant lies in the jurisdiction of this Hon’ble Court. In such view of the matter as stated hereinabove since the defendant is residing outside Kolkata this is a fit case where leave under Clause 12 of the Letters Patents be prayed for by the plaintiff before this Hon’ble Court.

25. By its wrongful acts and/or conducts as aforesaid the defendant has caused injury and by tarnishing the image of the plaintiff in the eyes of the readers/browers of the said website in Kolkata thereby causing irreparable loss, injury and prejudice to the interest of the plaintiff.

26. There exists no standard for ascertaining the losses caused or likely to be caused by such impugned acts of the defendants, namely to malign and vilify the goodwill and image of the plaintiff and that the plaintiff has suffered huge loss are proved from the letters of its probable business partners as appended to hereinabove. The aforesaid acts and conducts of defendants is such that compensation in terms of money can not afford adequate relief/reliefs.

27. The plaintiff is therefore entitled to claim and claims a perpetual injunction restraining the defendant from publishing any such defamatory articles or similar articles in the said Blog/Website or through other Websites or electronic media by himself through his men, servants and agents against the plaintiff and/or any of its associate companies or officers.

28. The plaintiff is also entitled to claim damages in addition to injunction as aforesaid in the facts and circumstances due to the reasons mentioned in sub-paragraphs hereunder written:-

a) As a result of such publication of the impugned articles in the website titled mandgoa-blogspot.com. The financial credibility of the leading financial institutions, bankers and investing public without whose support the plaintiff can not survive.

b) As a result of publication of the impugned articles the image of the plaintiff has gone down with the ordinary public as also with industrial houses and companies with whom plaintiff get into business transactions;

c) After publication of the impugned articles and taking note thereof especially in or around Calcutta the very plan of plaintiff to expand in the eastern zone has met with a jolt;

d) Plaintiff has suffered immensely due to sudden loss of goodwill and reputation which is bound to have far reaching consequences.

29. On account of the pecuniary losses as aforesaid which can not be ascertained the plaintiff is entitled to damges which the plaintiff reasonably assessed and quantify at Rs.500 Crores.

30. Alternatively, the plaintiff prays for an enquiry be made to ascertain the financial loses imposed on the plaintiff by way of damages so that a decree may be passed in favour of the plaintiff for such sum as may be found due to the plaintiff upon enquiry.

31. The instant case is valued at Rs.500 Crores and as such the Hon’ble Court has and the City Civil Court does not have jurisdiction to try and determine the suit.

32. The plaintiff states that since the suit is valued at more than Rs.500 Crores maximum Court fees of Rs.50,000/- has been paid by the plaintiff.

The plaintiff claims:-

a) Leave under clause 12 of the Letters Patent:
b) A Permanent injuction in favour of the plaintiff against the defendant restraining the defendant from publishing any such defamatory articles or similar articles in the said Blog/Website or through other Blog/Websites or other electronic/Printing media or by any other publication by himself or through his men, servants and agents against the plaintiff and/or any of its associates/group companies and officers.
c) Decreed for Rs.500 Crores as damages in favour of the plaintiff;
d) Alternatively, an enquiry into the damages and decree for such sum as general damages as may be found due upon such enquiry;
e) An additional decree for such further sum as may be found due upon such enquiry as general damages;
f) Such further injunction and/or direction in such terms and to such further effect as may be deemed necessary in the facts and circumstances of this case;
g) Receiver
h) Costs;


ADVOCATES FOR THE PLAINTIFF



VERIFICATION

I SUJAY GUPTA the Vice President (Comm) of the plaintiff abovenamed do hereby declare that I am acquainted with the facts and circumstances of this case and the statements contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 are based on information derived from records which I believe to be true and those contained in Paragraphs 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and 32 are my respectful submissions before this Hon’ble Court.

I sign this verification at---------

On this ------day of December, 2008.


Drawn by Mr.--------

Settled by Mr.-------------





AFFIDAVIT VERIFYING PLAINT

I, SUJAY GUPTA Son of Debabrata Gupta, aged about 38 years, by faith Hindu, by occupation service, working for gain at ……………..or at present residing at 538/1, Jodhpur Park, Kolkata – 7000069 do hereby solemly affirm and say as follows: -

1. That I am the Vice president (Comm) and an authorised person. I know the facts and circumstances of the cases and am competent to affirm this affidavit on behalf of the plaintiff above mentioned.

2. That the statements contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 are based on information derived from records which I believe to be true and those contained in paragraphs 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and 32 are my respectful submissions before this Hon’ble Court.

SOLEMLY AFFIRMED by the said
Sujay Gupta at Court House in Calcutta
On this day of December, 2008

Before me,

COMISSIONER