Sabyasachi Mukharji, J. - (1.) THIS is an application by defendant No. 1 K. B. Ghosh and Co. a firm carrying on business and having its office at 6, Old Post Office Street, Calcutta in Suit No. 510 of 1977 asking that the suit against the applicant, K. B. Ghosh and Co. be dismissed, the name of M/s. K. B. Ghosh and Co. be deleted from the cause title of the plaint and the plaint be amended by deleting or striking out the allegations against K. B. Ghosh and Co. It appears that there was a partnership firm under the name and style of Calcutta Decorators of which Purna Roy Chowdhury, Smt. Mallika Roy Chowdhury, one Amit Roy Chowdhury and Ajit Kumar Roy Chowdhury, who are defendants Nos. 2, 3 and 4 in the present suit, were the partners. There were certain disputes and there was a reference to arbitration and the arbitrators were one Tarapado Majumdar and Pari-mal Kumar Roy Chowdhury. In respect of the said arbitration proceedings, the defendant No. 1, K. B. Ghosh and Co. wrote a letter to Sri Tarapado Majumdar, who was one of the arbitrators on the 19th July, 1977 which contained, Inter alia, the following allegations: "By a letter dated 18th May, 1977 written by the Joint Arbitrator our clients were directed not to interfere with the activities of Sri Ajit Kumar Roy Chowdhury, who was described as a manager. The said letter was addressed to all the four parties concerned and was dated 18th May, 1977. From a note written by Sri Ajit Kumar Roy Chowdhury on 17th May, 1977, it transpired that he recorded the exact wordings of your said letter dated 18th May, 1977. The said fact was brought to the notice of the joint arbitrators in the meeting held on 19th June, 1977 and also by letter dated 28th June, 1977. Out of the two arbitrators, you came to the rescue of Sri Ajit Kumar Roy Chowdhury and said that to quicken the matter, you personally communicated the said fact to Sri Ajit Kumar Roy Chowdhury over the phone on 17th May, 1977. THIS is surely an act of misconduct on your part. You have contacted a party and discussed with him regarding the pending arbitration behind the back of others namely our clients. But our clients were really upset when they discovered that on 20th June, 1977, Sri Ajit Kumar Roy Chowdhury and his family took you and Sri Jiten Banerjee, a common friend of you and Sri Ajit Kumar Roy Chowdhury along with them to Pondicherry by 3 Up Madras Mall at his own cost and expenses. You will appreciate that as an Arbitrator when the arbitration is pending you should not accept such treatment from a party to the proceedings. You are surely guilty of moral turpitude and legal misconduct. On Sunday last 17th July, 1977 Mr. and Mrs. Ajit Kumar Roy Chowdhury took you and Mr. and Mrs. Shyamal Ghosh for entertainments. On 6th July, 1977, you accepted Rs. 56.30p in cash from Sri Ajit Kumar Roy Chowdhury." The letter further went on to state that the clients of K. B. Ghosh and Co. who were stated to be Sri Aparna Roy Chowdhury, Smt. Mallika Roy Chowdhury and Sri Ajit Kumar Roy Chowdhury had no hesitation to say that Sri Tarapado Majumdar could not act as an impartial arbitrator and in the fitness of things he should resign from the office. It was further alleged that the letter in question was being written on the instructions of the clients. It appears that the defendants Nos. 2, 3 and 4 who were the clients of the petitioner made an application to this Court under Sections 5, 8, 9, 11 and 41 of the Arbitration Act, 1940 more or less on the same allegations and the said letter was annexed to the petition. Sri Tarapado Majumdar was also made a party to the said application. The said application was heard by me and on 7th Sept., 1977 by consent of the parties, I had revoked the authority of the arbitrators and umpire and had removed them and appointed a member of the Bar as the arbitrator. In those circumstances the plaintiff, Sri Tarapado Majumdar on 26th August, 1977 instituted a suit being No. 510 of 1977 against the applicant, M/s. K. B. Ghosh and Co. as defendant No. 1 and defendants, Puma Roy Chowdhury, Smt. Mallika Roy Chowdhury and Sri Ajit Kumar Roy Chowdhury. The plaintiff has alleged in the suit that he was a businessman and had a reputation in the market. He had referred to the letter dated 19th July, 1977 written by the defendants Nos. 2 to 4 which according to him contained serious and untrue defamatory words. It was further alleged that the allegations in the said letter were false and malicious and the allegations were published to the stenographer, typist to the defendant No. 1, to the clerk and (sic) the plaintiff and to Ajit Kumar Roy Chowdhury and to P. K. Roy Chowdhury to whom the copies of the letters were sent. It was, further, alleged in the said letter the defendant meant and was understood to mean that the plaintiff was a dishonest person, completely lacking in particular, the integrity, the plaintiff was open to illegal gratification and susceptible to bribery. In the aforesaid circumstances, the plaintiff has instituted the suit claiming damages for defamation for Rupees 50,000/- and consequential reliefs.
(2.) IN this application the applicants have stated that the letter in question was written by the applicants under instructions from their clients and the applicants did not personally know the plaintiff. The petitioners had further affirmed that the statements contained in the said letter were based on informations derived from defendants Nos. 2, 3 and 4 and the petitioners had no personal knowledge of the allegations contained therein. It is further the case of the petitioners that the said letter was written under instructions received from defendants Nos. 2, 3 and 4 and in discharge of the duties as Advocates. It is further mentioned by the petitioners that the petitioners had never seen the plaintiff. The petitioners alleged that they were never personally acquainted with the plaintiff and never heard of the plaintiff prior to the receipt of the instructions from defendants Nos. 2, 3 and 4 in connection with the disputes with Sri Ajit Kumar Roy Chowdhury regarding the firm, Calcutta Decorators. The petitioners have no grievance or enmity with the plaintiff. In the affidavit-in-opposition, the plaintiff after setting out the facts and circnmstances has denied the bona fides and the legality of the alleged instructions. The plaintiff has further stated that the said allegations were made and published "falsely and maliciously to squeeze him out of the reference by character assassination". The plaintiff has stated "I say that the allegations made In the letter dated 19th July, 1977 are maliciously false and wrongfully and deliberately made to lower me in the estimation of the right thinking member of the public and to injure me in my credit in the business." The plaintiff admits that the plaintiff is not known to the petitioner firm. The plaintiff has further stated that Mr. B. B. Ghosh who is a partner of the petitioner firm is an uncle of defendant Sri Purna Roy Chowdhury and as such it is alleged that he is personally interested in the matter, The plaintiff further alleged that the petitioners wrongfully and illegally identified themselves with their clients in writing and publishing the malicious, false and defamatory letter. In the affidavit in reply on behalf of M/s. K. B. Ghosh and Co. it was stated that Mr. B. B. Ghose of M/s. K. B. Ghosh and Co. did not deal with the matter. It is in the background of these facts of the case and averments that the claims of the plaintiff against defendant No. 1 M/s. K. B. Ghosh and Co. have to be decided.
(3.) BEFORE I deal with this point, I may notice the relevant authorities both in England and in India on this subject of the matter. In Cordery on Solicitors 15th Edition, page 39 it has been observed as follows: "A Solicitor acting as an advocate cannot be sued in respect of anything he may say in course of a judicial proceeding, even though the statement made is clearly malicious and has no relevance to the case in which he is engaged. The privilege is absolute and applies equally to proceedings before a tribunal recognised by law which whilst not in the ordinary proceedings a judicial Tribunal, acts in the same way as a Court of law acts In respect of any proceedings before it. The Advocate enjoys an absolute privilege of speech because it is in the public interest as well as in the interest of his client that the administration of justice should be entirely unfettered. Although the cases In support of these statements referred to counsel, a solicitor when acting as Advocate enjoys the same privilege, The privilege is not confined to the spoken word but extends to pleadings settled by the Solicitor (or Counsel) and other written matter introduced by him for the purpose of proceedings even though they have no relevance or authority to support them.";