[8th Novice Moot Court Competition,2020-21]

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TABLE OF CONTENTS

LIST OF ABBREVATIONS...........................................................................................................3
INDEX OF AUTHORITIES...........................................................................................................4
STATEMENT OF JURISDICTION...............................................................................................5
STATEMENT OF FACTS..............................................................................................................6
ISSUES RAISED.............................................................................................................................8
SUMMARY OF ARGUMENTS.....................................................................................................9
ARGUMENTS ADVANCED.......................................................................................................11
1. The respondent did not publish any statement which contain defamatory material against
the petitioner..............................................................................................................................11
1.1 The statement made by the respondent were not false & defamatory in nature..............11
1.2 The statement made by the respondent consists of an opinion & a fair comment..........12
1.3 The defendant has qualified privelage.............................................................................13
2. The statement made by Ashok caused no actual damage to Nayak.....................................14
2.1 The petitioner is entitled to no compensation or damages, to be payable by the
respondent , for defaming the plaintiff, & if so to what extent..............................................14
PRAYER........................................................................................................................................16

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LIST OF ABBREVATIONS

& - And

§-Section

¶ - Paragraph

AIR – All India Reporter

AIR- All Inida Reporter

All ER – All England Law Report

BOM - Bombay

CPC – Civil Procedure Code

CWN – Calcutta Weekly Notes

Dec - December

Hon’ble - Honourable

ILR- Indian Law Reports

Jan – January

KB – Kings Bench

MHC - Madras High Court

MP – Madhya Pradesh

Nov - November

Pat – Patna

QB – Queen’s Bench

Sd/- - Signed

V. – Versus

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INDEX OF AUTHORITES

Cases:

Alexander v. North Eastern Railway Co, [1865] 6 B & S 340.

Dainik Bhaskar v. Madhusudan Bhaskar , AIR 1991 MP 162 
Dawkins v. Lord Paulet , (1869) LR 5 QB 94 (102)
Hebditch v. Macllwaine, (1894) 2 QB 54
Horrocks v. Lowe , (1974) 1 All ER 662 (670, 671)
Raghunath damodhar v. Janardhan gopal , (1891) ILR 15 BOM 599
Rangabati v. United Bank Of India Ltd. And Anr, AIR 1961 Pat 158.
Sri Raja Sitarama v. Sri Raja Sanyasi , (1866) 3 MHC 4.
Surendra Nath v. Bageshwari Prasad , AIR 1961 Pat 164 .
Tushar Kanti Ghose v. Bina Bhowmick , (1952) 57 CWN 378.
Watt v. Longsdon, (1930) 1 KB 130.

Acts:
§ 6 of the Defamation Act, 1952

Book:

Ratanlal & Dhirajlal : The Law of Torts (Lexis advance)

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STATEMENT OF JURISDICTION

The Respondent humbly submits to the jurisdiction of the Hon’ble high court of Indraprastha
under § 9 and §15 of CPC 1908. Which states, Every suit of civil nature can be approached under
a civil court and Every suit shall be instituted in the Court of the lowest grade competent to try it
respectively.

The present memorandum sets forth the facts, contentions and arguments.

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STATEMENT OF FACTS

 Background details:

1. Ashok & Nayak are two well-known rival advocates who are specialized in the Arbitration
Law. Nayak & Ashok are ranked first & second, respectively, in a survey conducted by
Advocate Khanij, a renowned advocate ranking website.

2. The COVID-19 pandemic has halted most professions for several months. In the pandemic,
both Ashok’s & Nayak’s profession also was dull.

3. In Jan 2020, Nayak’s office saw a steep decline in the number of clients & there was a decent
rise in the clientele of Ashok since Nov 2020.

4. Nayak is a 60-year-old man living with his wife & a married daughter. His daughter is going
through divorce proceedings & it has been a tough time in his family. He is so attached to his
daughter & was highly depressed about the situation that he could not handle the divorce case by
himself & delegated it to another office.

Ashok is a 45-year-old unmarried man, strives hard to beat Nayak in the profession and intends
to secure No.1 position Arbitration law.

5. Nayak suffers from Asthma since his birth & the trouble remains constant every winter. In the
first week of Dec 2020, the peak of the winter season began. Nayak got hospitalized for
treatment & was put under observation for breathing in Chithram Hospital & got discharged after
four days.

Ashok is conscious of Nayak’s activities & is fully aware of Nayak’s yearly hospital visits &
also has been informed of Nayak’s recent hospitalization.

6. LONARSO is a London-based Arbitration Society was conducting the International

Arbitration Conference, 2020 during the last weekend of Dec 2020.

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Corporate Executives generally attend this conference to gain knowledge on Arbitration & to
find out good Arbitrators & counsels, whom they can appoint in future or replace their current
ones, whose work is not satisfactory.

 The incident:

7. Ashok & Nayak are regular attendees of these conferences rivalry between Ashok & Nayak is
well known to most of the attendees of the conference & they consider it positively with good
spirit.

8. Nayak could not attend this year’s conference due to personal reasons.

9. Paul Fighter, an international speaker during his speech, explained Nayak’s extraordinary
work in a particular case, intending to inspire & motivate the upcoming advocates who attended
the conference. Not knowing that Nayak didn’t attend the conference, the speaker asked Nayak
to advice on how to gain such skills.

10. Ashok knowing that Nayak did not attend the meeting, unmuted himself & said “A leading
advocate got recently discharged from Chithram Hospital after a four-day treatment. He might
have tested positive or maybe Mentally unstable, who knows! People choose your counsel wisely
& stay safe”.

Then the speaker wished good health & a speedy recovery for Nayak & continued his speech.

11. General Practice of LONARSO is that these live conferences are recorded & uploaded in
KYU TUBE. The recent conference that concluded in the last week of Dec was yet to be
uploaded on KYU TUBE, due to their busy schedule & pending editing related work of the
video.

12. Nayak got to know about Ashok’s statement regarding his hospitalization through a friend
who attended the live conference. Nayak believes that the reason for such a strange & sudden
decline in his clientele from Jan 2020 is Ashok, & decided to sue him & filed a civil suit for
defamation & claim damages.

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ISSUES RAISED

1. Whether the respondent have published statement which contain defamatory material against
the petitioner?

2. Whether the statement made by Ashok caused actual damage to Nayak?

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SUMMARY OF ARGUMENTS

1. Whether the respondent have published statement which contain defamatory material against
the petitioner?

1.1 Whether the statement made by the defendant was false & defamatory in nature?

If a statement is true, then that could afford a defence against defamation proceedings no action
lies for it even if published maliciously. It is not necessary to prove that the statement is litrealy
true, it is sufficient if it is true in substance.

1.2 Whether the statement consist an opinion?

A statement of opinion must be present, the basis of the opinion is stated and it should be held
that it is reasonable for the publisher to have held the opinion based on facts available at the time

1.3 Whether the defendants had qualified privilege.

Law makers have decided that one cannot sue for defamation in certain instances when a
statement is considered privileged.

The concept of “qualified privilege” often arises in defamation cases, which broadly can offer
protection to a publisher of a statement if they had a legal, moral obligation or interest in making
the publication to another party (conversely the party receiving it had a similar interest to receive
it). If qualified privilege is raised by the Defendant, it is for the Claimant to show that the
publisher did so with “malice”, i.e. some other adverse motive, or else a qualified privilege
defence may assist.

2. Whether the statement made by Ashok caused any actual damage to Nayak?

2.1 Whether the petitioner is entitled to compensation or damages, to be payable by the

respondent , for defaming the plaintiff, & if so to what extent.

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Even if the statement published does appear to defame another party, if that party cannot prove
they have suffered actual serious harm or if the damages are too remote to make sense then the
respondent is not liable. For example if a business cannot prove that they have suffered any
financial loss, then the claim may fail. The threshold is high & can frustrate cases which initially
appear to have merit.

The damages provided should be reasonable if defamation is in fact proved.

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ARGUMENTS ADVANCED

1. The respondent did not publish any statement which contain defamatory material against the
petitioner.

(¶1) In Rangabati v. United bank1 of India the division bench of Patna High Court at paras 22,
23, 24 and 25 observes as here under:- “Besides the general defences applicable to all actions in
torts, such as, limitation, consent, accord and satisfaction, previous Judgement etc., the three
special defences available in an action for defamation, under the common law, are (1)
justification or truth , or (2) privilege, absolute or qualified, and, (3) fair comment.

1.1 The statement made by the respondent were not false & defamatory in nature

(¶2) This same defences can be upheld for this instant case with the help of , as according to
defences of defamation it is held that in a civil suit the truth is ultimate defence for defamation 2
& its 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, & that the details, etc. , which are not
justified, produce no different effect on the mind of the reader than the actual truth would do.3

(¶3) And in Indian there is no specific difference between libel & slander.

(¶4) Thus, it is enough if the statement though not perfectly accurate is substantially true. 4 This
can be held same for the statement made by the defendant Ashok.

(¶5) Mention must also be made of § 6 of the Defamation Act, 1952 (English) which provides
that in an action for libel or slander in respect of words consisting partly of allegations of fact &
partly of expression of opinion, a defence of fair comment shall not fail by reason only that the
truth of every allegation of fact is not proved if the expression of opinion is fair comment having
regard to such of the facts alleged or referred to in the words complained of as are proved.
1
Rangabati v. United Bank Of India Ltd. And Anr, AIR 1961 Pat 158.
2
Raghunath damodhar v. Janardhan gopal, (1891)ILR15BOM599.
3
Dainik Bhaskar And Anr. v Madhusudan Bhargava And Anr., AIR 1991 MP 162, 168.
4
Alexander v North Eastern Railway Co, [1865] 6 B & S 340.

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(¶6) In this instant case the first statement can be proved by going through records of hospitals &
the later statement cannot be proved or verified & this can be upheld.

(¶7) It is humbly submitted before this Court, that in the above case Advocate Ashok did not
utter any defamatory word against Advocate Nayak & he told at the conference what is actually
happened with regard to the health of nayak. The hospitalization of nayak is true & a fact.
Advocate Ashok revealed the same so the statement of Ashok regarding the health of the nayak
does not comes under defamatory statement.

1.2 The statement made by the respondent consists of an opinion & a fair comment

(¶8) If the statement made is an opinion & not a statement or assertion of fact, then the said
statement cannot be termed as defamatory.
(¶9) It is a defence to a defamation claim if the defendent can show that what he said was a
statement of opinion; that the statement complained of indicated the basis of that opinion; & that
an honest person could have held the opinion based on any fact which existed at the time the
statement was made.
In this instant case the second part of the statement is an opinion and a fair comment since the
statement of opinion is made on the fact that Nayak visited the hospital.

(¶10) And again in this instant case the second statement may look rude in the prima facie but it
cannot be taken as grounds for malice as the omission of a mere courtesy could not be taken to
be equivalent to slandering or libelling a man, & is not an actionable wrong.5

1.3 The defendant has qualified privelage.

(¶11) And it is humbly submitted before this Court, that the qualified privilege can be held up for
the defendant.

5
Sri Raja Sitarama v. Sri Raja Sanyasi, (1866) 3 MHC 4.

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(¶12) A communication, injurious to the character of another made bona fide from a sense of

duty, legal, moral, or social, & reasonably necessary for the due discharge of such duty, & made
with a belief in its truth, is privileged.6 There must in fact be an interest or duty in the person to
whom the libel is published. It is not sufficient that the maker of the statement honestly &
reasonably believes that the person to whom it is made has such an interest or duty; 7 the person
must have an interest in the matter communicated.8 A privileged occasion in the present context
is “an occasion when the person who makes a communication has an interest or a duty legal,
social or moral, to make it to the person to whom it is made, & the person to whom it is made has
a corresponding interest or duty to receive it. This reciprocity is essential.” 9 The principle is that
“either there must be interest in the recipient & a duty to communicate in the speaker, or an
interest to be protected in the speaker & a duty to protect it in the recipient. 10 But the privilege is
restricted to the communication that is relevant to the duty or interest & does not extend to
irrelevant matters.11 But the test of irrelevant matter is not whether it is logically relevant but
whether in all the circumstances, it can be inferred that the defendant either did not believe it to
be true, or though believing it to be true, realised that it had nothing to do with the particular duty
or interest on which the privilege was based, but nevertheless seized the opportunity to drag in
irrelevant defamatory matter to vent his personal spite or for some other improper motive. 12

(¶13) Therefore, what is published in good faith in matter of these kinds is published on a
privileged occasion & is not actionable even though it may be defamatory & turn out to be
untrue.13 For example- in a case the respondent published a news letter known as the
‘Occupational Health & Safety Bulleton’. It dealt only with matters relating to occupational
health & safety matters & its subscribers were also only those who were responsible for these
matter. Because of this there existed a duty or interest between maker & recipient. In one of its
bulletons the respondent published an article discussing litigation involving a company
controlled by the appellant. The article erroneously reported that the appellant (as opposed to the
6
Prem Narain v. Jogdamba Sahai, (1925) ILR 47 All 859.
7
Hebditch v. Macllwaine, (1894) 2 QB 54.
8
Watt v. Longsdon, (1930) 1 KB 130.
9
Tushar Kanti Ghose v. Bina Bhowmick, (1952) 57 CWN 378.
10
Watt v. Longsdon, (1930) 1 KB 130.
11
Surendra Nath v. Bageshwari Prasad, AIR 1961 Pat 164 .
12
Horrocks v. Lowe, (1974) 1 All ER 662 (670, 671).
13
Id.

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company) had been found to have contravened the Trade Practices Act, 1974. Having regard to
all the circumstances of the case the respondent was given the benefit of qualified privilege.

(¶14) In the instant case the defendant believed that the condition of the petitioner should be
known to the Corporate Executives in good faith, who attended the meeting in search for good
Arbitrators & counsels, whom they can appoint in future or replace their current ones, whose
work is not satisfactory.

2. The statement made by Ashok caused no actual damage to Nayak.

2.1 The petitioner is entitled to no compensation or damages, to be payable by the

respondent , for defaming the plaintiff, & if so to what extent.

(¶15) In this instant case it can been seen that,

 the COVID-19 pandemic has halted most professions for several months, both Ashok’s &
Nayak’s profession also were dull. & it was in Nov 2020 that there was a rise in clientele
of Ashok that is before the happening of LONARSO so Ashok did not benefit
maliciously from the statement he made and;
 the steep decline of Nayak clients in Jan 2021 can be attributed to the continuation of the
pandemic effect & some clients changing their option before LONARSO.
 And at last it can be seen that the recording of the conference has not yet been uploaded.

It is humbly submitted before this Court, that the they were no actual damages caused to Nayak
from Ashok’s statement and the petitioner cannot ask damages.

(¶16) Only a successful petitioner in a defamation action is entitled to recover. In addition to

this, even if defamation is proved, the compensation or damages should be reasonable &
proportionate to the alleged injury suffered by the plaintiff.

(¶17) It is permissible to the respondent to seek to mitigate damages by proving the following
circumstances:—

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(1) absence of malice, in this case there is no malice as Ashok in good faith and made the
statement in interest of the executives.
(3) apology at the earliest opportunity, And here the petitioner did not ask for any apology or
amends. Some categories of privilege require as a condition that an opportunity be given for a
suitable explanation and contradiction.

PRAYER

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Wherefore in the light of questions presented, arguments advanced & authorities cited, it is
humbly prayed by the Respondent before the Hon’ble High Court of Indraprasth, that it may:

1. The respondent cannot be sued or held liable for the statements which are allegedly
defamatory in nature.

2. The respondent statement did not do any actual damages to the petitioner. Hence the petitioner
is not entitled to any compensation or damages from the respondent.

And pass any order which it deems fit in light of justice, equity & good conscience. For this act
of kindness, the Respondent shall duty bound forever pray.

Sd/-

Counsel on behalf of the respondent

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