- (1.) The award debtor has filed an application for expunging the statements from the records of this Court mentioned in paragraph 9 of the petition which is contained in paragraphs 37 and 38 of EC No.487 of 2013. In paragraph 9 of the petition the petitioner sets out the statements which, according to them, are false and defamatory. The said statements reads as follows : 'i) There are also substantial cash monies lying at the said premises of the respondent. ii) The cash monies all belong to the respondent which is liable to be attached. iii) The cash monies are located at the 5th floor of premises being No.15B, Hemanta Basu Sarani, Kolkata - 700 001. iv) The directors of the respondent have been involved in fraudulent activities and criminal proceedings are pending against him'.
(2.) Mr.S.N. Mitra, learned Senior Counsel appearing for the petitioner, submits that the deponent to the said affidavit in support of the execution petition has affirmed paragraph 37 as submission and paragraph 38 as true to his knowledge. The deponent of the affidavit is a constituted attorney. It is submitted that the words were chosen intentionally to disrepute the petitioner.
(3.) In dealing with the allegations made in the petition, the award holder in paragraph 8 stated that at the time of filing of the execution application, the applicant/award debtor was having its registered office at 15B, Hemanta Basu Sarani, 5th Floor, Kolkata - 700 001 and from the balance- sheet of the applicant as on 31st March, 2014 it would appear that the applicant/award holder had substantial amount as cash in hand/check/drafts etc. between 31st March, 2013 to 31st March, 2014. A copy of the applicant's audited annual repot was also disclosed. In the affidavit the petitioner has disclosed an article published in a newspaper on 13th August, 2012 and various court proceedings including orders passed therein to show that the directors of the applicant/award debtor were prima facie found to be involved in diversion of food grains meant for BPL category. However, the award debtor admits that there has been some negligence in the jurat portion of the affidavit as paragraph 37 as it stands now could not be submissions but are based on information derived from the record. The record in support of such submission has since been disclosed in paragraph 8 of the affidavit-in-opposition. The averments made on which the applicant/award holder is seeking deletion appears to be based on the documents which have been disclosed in paragraph 8 in the affidavit-in-opposition. There has been no serious denial of the allegations made in paragraph 8 in the affidavit-in-opposition. When a decree holder is filing an application for execution, the decree-holder is required to make out a case in support of the pleadings and on the basis of the documents disclosed in paragraph 8 in the affidavit-in-opposition it could not be said that the said averments were made with any intention to defame and/or ridicule the applicant. It could be at best a little exaggeration. The award holder has formed an opinion on the basis of the documents and has drawn inference from the said facts which the applicant/award debtor can always refute and/or deny. However, it cannot be said that the said words are defamatory per se as in paragraph 8 of the affidavit-in-opposition, the award holder has given justifications. The order of the Division Bench disclosed in the proceeding has unmistakably observed that the involvement of M/s. LMJ International of which the applicants are the directors has prima facie been established. This observation is subsequent to a paper publication relied upon by the award debtor disclosing a finding by a probe panel.;