1st SURANA & SURANA AND RAMAIAH COLLEGE OF LAW

NATIONAL TORT LAW MOOT COURT COMPETITION

TEAM CODE-WS30_D

IN THE HIGH COURT OF JUDICATURE AT MUMBAI

Ordinary original civil Jurisdiction

IN THE MATTER OF
MR. HEISENBERG…………………………………….PLAINTIFF
VERSUS
TRAVEL SOLUTIONS PRIVATE LIMITED….……….DEFENDANT

Suit No. of 2017

Written statement on behalf of the Defendant

MEMORANDUM ON BEHALF OF THE DEFENDANT

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TABLE OF CONTENTS PAGE

NO.
INDEX OF ABBREVIATIONS 2
INDEX OF AUTHORITIES 3

Table of cases 4
Books Referred 5
Research database 5

Statutes 5

STATEMENT OF JURISDICTION 6
STATEMENT OF FACTS 7
STATEMENT OF ISSUES 8
SUMMARY OF ARGUMENTS 9

ARGUMENTS ADVANCED 10
ISSUE 1: Whether the Plaintiff proves that the 10
Defendant acted negligently?
1.1. Was there duty of care? 10
1.2. No breach of duty 11

1.3. Plaintiff’s carelessness leading to negligence 11

1.4. No actionable negligence 12
ISSUE 2: Is the Plaintiff entitled to compensation, if 13
yes, the quantum thereof?
2.1. Remoteness of Damages 13
ISSUE 3: Whether the Defendant proves that the 15
statements of the Plaintiff amount to defamation?
3.1. Statements of Plaintiff are defamatory 15
3.2. The statements are false and published 16

3.3. Presence of malicious propaganda 17

ISSUE 4: Is the Defendant entitled to compensation? 18

PRAYER 20

MEMORANDUM ON BEHALF OF DEFENDANT

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INDEX OF ABBREVIATIONS

A.C. Appeal Cases

A.I.R. All India Reporter
All E.R. All England Law Reports
All. Indian Law Reports, Allahabad
A.L.J.R. Allahabad Law Journal Reports
ALD Andhra Legal Decision
A.P. Andhra Pradesh
Bing. N.C. Bingham’s New Cases
Bom. Indian Law Reports, Bombay
Cal. Indian Law Reports, Calcutta
Camp. Campbell’s Reports
CA Court of Appeal
D. & R. Dowling & Rylands
Ex Exchequer
EWCA England and Wales Appeal
H. & N. Hurl Stone & Norman
HL House of Lords
Hob. Hobart’s Reports
H.P. Himachal Pradesh
I. L.R. Indian Law Reports
Jur. N.S. Jurist New Series
K.B. Law Reports, Kings Bench
L.B.R. Lower Burma Rulings
L.J. Lord Justice
L.R. Law Reports
L.T. Law Times
Lah. India Law Reports, Lahore
M. & W. Meeson & Welby
M.H.C. Madras High Court Reports
M.P.L.J. Madhya Pradesh Law Journal
M.L.J. Madras Law Journal Reports
M.W.N. Madras Weekly Notes
P.C. Privy Council
P.L.R. Punjab Law Reporter
Q.B. Law Reporters, Queens Bench
SC Supreme Court
SCC Supreme Court Cases
TSPL Travel Solutions Private Limited
T.L.R. Times Law Reports
W.R. Weekly Reporter

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INDEX OF AUTHORITIES
TABLE OF CASES
Case Cited On
 Barrow v. Lewelli, (1615) Hob. 62 17
 Baba Gurdit Singh v. “Statesman Ltd.”, (1935) 19
ILR 62 Cal 838.
 Blake v Galloway [2004] CA 11
 Blyth v. Birmingham Waterworks Co.,(1856) 11 10
EX 781
 Bolam v. Friern Barnet Hospital Management 12
Committee, (1957) QBD
 Bonnington Castings v. Wardlow, (1956) AC 13
613 (HL)
 Channel Seven Adelaide Pty. Ltd. v. Manock 16
2007, 82 ALJR 303, p. 313 para 35
 Cheese v. Scales, (1842) 10 M&W 488. 16
 Clement v. Chivis, (1829) 9 B & C 172 17
 De Crespigny v. Weselley 5 Bing 392.08 15
 Donoghue v. Stevenson 1932 AC 562 11
 E. Haulton & Co. v. Jones 1910, AC 20, 23: 101 19
LT 831: 26 TLR 128.
 Governors of Pwabody donation fund v. Sir 12
Lindsay ParkisonCo.Ltd. (1984) 3 ALLER
529:(1985)A 210
 Hayward v. Thompson, (1981) 3 All ER 450 16
(458) (CA).
 Heaven v Pender,(1883) 11 QBD 503 12
 Kaikshuru Naoroji Kabraji v. Jehnagir Byarmji 18
Muzban, (1890) 14 Bom 532
 Khair-ud-Din v. Tara Singh, (1926) ILR 7Lah 16
49.
 Konee Subhadra v. Subbarayadu (1990) 10 MLJ 19
83
 Leslie Rogers v. Hajee Fakir Muhammad Sait, 19
(1918) 35 MLJ 673
 Lewis v. Daily Telegraph, 1963 2 All ER 151 16
(HL) (154)
 Lt. Col. Gidney v. The A.I. & D.E. Federation, 17
(1930) ILR 8 Ran 250
 Mallet v McMonage [1970]A.C. 166 at 176 13
 Mc Ghee v. National Coal Board,(1972) 3 ALL 13
ER 101829
 McKew v. Holland &Hallen&Cubitts, (Scotland) 11
Ltd 1969 3 ALL E.R. 1621 (H.L.SC.)
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 Newstead v. London Express Newspapers Ltd., 19
(1939) 2 KB 317
 Ogilvie v. The Punjab Akhbharat & Press Co 17
1929, ILR, Lah 45
 Parvathi v. Mannar 1884, ILR, 8 Mad 175, 180 19
 Per Tindal, C.J.in Vaughan v. Menlove, (1837) 12
3 Bing NC 468,475
 Pullman v. Hill & Co., (1891) 1 QB 524: 39 17
WR 263: 64 LT 691
 Railroad Co. v. Denman, 10 Minn., 250 (Gli. 18
208).
 Ramakant v. Devilal, 1969 MPLJ 805 (G.P. 15,16
Singh. J.)
 Subbaraidu v. Sreenivasa Charyulu, (1926) 52 19
MLJ 87.
 Suraj Narain v. Sita Ram (1939) ALJR 394. 18
 Swan v. North British Australasian co.,(1862)7
H&N 60
 Telikoff v. Matusevitch, (1991) 4 All ER 817: 16
(1992) 2 AC 343
 Thorley v. Earl of Kerry, (1809) 3 Camp. 214 N. 18
 Union Benefit Guarantee Company v. Thakorlal 19
, (1935) 37 Bom LR 1033
 Waithman v. Weaver (1882) 11 Price 257. 18
 Watkin v. Hall, (1868) LR 3 QB 396. 16,18
 Weaver v. Lloyd, (1824) 4 D&R 230 16

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BOOKS REFERRED

 Ratanlal and Dhirajlal; The Law of Torts (Updated 26th

Edition)
 Dr. N. V. Paranjape; Law Of Torts
 Winfield and Jolowicz; Tort
 M P Jain; The Indian Constitutional Law
 Dr. S K Kapoor; Law of Torts
 R K Bangia; Law of Torts with Consumer Protection
 C K Takwani; Civil Procedure Code with Limitation
Act,1963
 Black’s Law Dictionary (7th Edition)
 Mahendra C. Jain; Bombay High Court (Original Side) Rules
 P RamanathaAiyar’s Adva nced La w Lexicon,4th Edition,
Volume 3

RESEARCH DATA BASE

 Manupatra Online Resources, http://www.manupatra.com

 Lexis Nexis Academica,http://www.lexisnexis.com/academica
 Le xis Nexis Lega l, htt p:// www.lexisnexis.com/in/legal.
 SCC Online, http://www.scconline.co.in
 www.indiankanoon.org

STATUTES

 Indian Contract Act,1872

 Constitution of India
 Civil Procedure Code,1908

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STATEMENT OF JURISDICTION

The Defendant most humbly and respectfully submits to the

jurisdiction of this Hon’ble High Court of Mumbai that the
Defendant Company is situated in Mumbai, the actual bookings
took place in its Mumbai office, and the cause of action has also
arisen in Mumbai. Therefore, this Hon'ble Court of Mumbai has
within its jurisdiction the authority to try, entertain, decide and
dispose of the present Suit.

MEMORANDUM ON BEHALF OF DEFENDANT

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STATEMENT OF FACTS

In July 2017 Mr Heisenberg planned a family vacation to

Australia and approached TSPL for making arrangements for it.
He was assured that the issuance of tourist visa generally takes
10-15 days. He wanted to book the tickets from Mumbai to Sydney
for 08.09.17 but TSPL advised him to book tickets from Chennai
to Sydney as they were cheaper.
On 07.08.17 Mr.Heisenberg was given a list of documents by
Mr.Tommen and was asked to hand over the documents personally
to him for scrutinising. Mr.Heisenberg submitted the documents
by evening of 11.08.17 to the receptionist as Mr.Tommen had left
the office. Mr.Tommen instructed the receptionist to dispatch the
documents immediately.
On 21.08.17 Mr.Heisenberg got a call from TSPL Delhi office
asking for an additional document and was also informed that
from 12.08.17 to 15.08.17 the office was closed owing to public
holidays. The documents dispatched on 16.08.07 were received on
18.08.17 and verified on 21.08.17. Mr.Heisenberg sent the
documents by express courier to Delhi on 22.08.17.TSPL received
the documents and filed the visa form on 23.08.17.
On 06.09.17 visas were issued and the conformation of the same
was sent to Mr Heisenberg via WhatsApp. Due to time crunch
TSPL advised that they would send the passports to Chennai
airport directly.
On 08.09.17 Mr Heisenberg reached Chennai airport with his
family at 2 pm and the passport reached by 9 pm hence they
missed the flight and were informed that the flight from Chennai
was non-refundable and the one from Mumbai was refundable.
Out of frustration, he tweeted “Travel Solutions Private Limited-a
bunch of liars, cheats and thieves with no ethics. The worst
company ever”. He uploaded a picture of his entire family
stranded at the airport along with a detailed post narrating the
instant episode. He ended the post with #TSPLsucks and a logo of
the company. The tweet and the post became viral.
Mr.Heisenberg sued TSPL for their negligence before the High
court of Mumbai for a sum of Rs.1 Crore. TSPL filed a counter
claim of malicious propaganda and defamatory misinformation.

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STATEMENT OF ISSUES

1. WHETHER THE PLAINTIFF PROVES THAT THE

DEFENDANT ACTED NEGLIGENTLY?

2. IS THE PLAINTIFF ENTITLED TO COMPENSATION, IF

YES, THE QUANTUM THEREOF?

3. WHETHER THE DEFENDANT PROVES THAT THE

STATEMENTS OF PLAINTIFF AMOUNT TO
DEFAMATION?

4. IS THE DEFENDANT ENTITLED TO COMPENSATION?

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SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE PLAINTIFF PROVES THAT THE

DEFENDANT ACTED NEGLIGENTLY?
It is most humbly and respectfully contended before this Hon'ble
Court Of Mumbai that there was no negligence on the Defendant’s
part as it has exercised all reasonable care and skill towards the
Plaintiff. Rather the Plaintiff has been unable to follow his duty
of care and has been negligent in submitting all the documents
required at proper time leading to the damages suffered.

ISSUE 2: IS THE PLAINTIFF ENTITLED TO COMPENSATION,

IF YES, THE QUANTUM THEREOF?
It is most humbly and respectfully contended before this Hon'ble
High Court of Mumbai that since there is no breach of duty on the
part of the Defendant, the Plaintiff is not entitled to any kind of
compensation. Moreover, the damages suffered by the Plaintiff
were due to his carelessness. The delay in the arrival of the visas
at Chennai airport happened inadvertently and due to unavoidable
circumstances.

ISSUE 3: WHETHER THE DEFENDANT PROVES THAT THE

STATEMENTS OF THE PLAINTIFF AMOUNT TO
DEFAMATION?
It is most humbly and respectfully submitted before this Hon'ble
High Court of Mumbai that the statements of the Plaintiff amount
to defamation as they were false, published and defamatory. The
statements by the Plaintiff manifested as malicious propaganda
because the Plaintiff resorted to publish his grievances on his
social media handle rather than approaching the Defendant.

ISSUE4: IS THE DEFENDANT ENTITLED TO

COMPENSATION?
It is most humbly and respectfully submitted before this Hon'ble
High Court of Mumbai that the Defendant is entitled to
compensation. The Defendant suffered enormous economic loss as
well as harm to its reputation as an outcome of the defamatory
statements of the Plaintiff.

MEMORANDUM ON BEHALF OF DEFENDANT

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ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE PLAINTIFF PROVES THAT THE

DEFENDANT ACTED NEGLIGENTLY?

Negligence is the breach of duty caused by the omission to do

something which a reasonable man, guided by those considerations
which ordinarily regulate the conduct of human affairs would do,
or something which a prudent and reasonable man would not do.1

1.1 WAS THERE DUTY OF CARE?

Duty of care is a legal obligation which is imposed on an

individual requiring adherence to a standard of reasonable care
while performing any acts that could foreseeably harm others.2
The Defendant hereby states that it followed all the necessary and
reasonable duty of care towards the Plaintiff as enumerated
below.

The Plaintiff approached the Defendant to book tickets for his

family vacation to Australia. The sales team of the Defendant
guided by customer satisfaction arranged for a tour plan that was
economical for the Plaintiff and handed over a standardised list of
documents required for processing of Australian visa to him on
07/08/17. The Plaintiff submitted his documents on 11/08/2017 to
the Defendant’s Mumbai office. It so happened that due to public
holidays, unavoidable and inadvertent delay was caused in
scrutinising his visa documents. On 21/08/17, upon scrutinizing
the documents before submission to the Australian Embassy, the
Defendant found a document missing and therefore contacted the
Plaintiff to send the additional document immediately which was
sent by the Plaintiff on 22/08/17 and received by the Defendant
on 23.08.17. Since unavoidable delay had already been caused,
taking reasonable duty of care, the Defendant made it a point to
file for the visas on 23/08/17. Thus the duty of care on the
Defendant’s part can be directly inferred from the above
mentioned.

1
Blyth v. Birmingham Waterworks Co.,(1856) 11 EX 781
2
Advance Law Lexicon, Volume 2, Edition 4

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1.2 NO BREACH OF DUTY

Breach of duty is the violation of a legal or a moral obligation;

the failure to act as the law obligates one to act.3

A s s t a t e d i n B l a k e v G a l l o w a y 4, o n l y r e c k l e s s n e s s o r a v e r y h i g h
degree of carelessness is sufficient to breach the duty of care.
Thus in this case the Plaintiff was so careless that he missed a
document required to process the visa which caused the delay.

The Defendant cannot be held liable for breach of duty of care on

its part as the visa form of the Plaintiff and his family was filed
on 23/08/17 i.e. on the same day as the additional document was
received. The visas were issued by the Australian embassy on
06/09/17 and the conformation of the same was sent to the
Plaintiff by the Defendant via WhatsApp and due to the paucity of
time the Defendant advised the Plaintiff that they would directly
send the passports to Chennai airport. This advice was given by
the Defendant in good faith and acting on the duty imposed by
law. Here the Defendant could not reasonably foresee that the
passports would not reach Chennai airport on time as being
professionals in the field of business they had taken all
reasonable steps to deliver the Plaintiff’s visa and passports on
time and so also to serve him better and to avoid any form of
harm to him. Although more, the delay in visa processing cannot
be attributed to the Defendant as it is at the sole discretion of the
embassy.

1.3 PLAINTIFF’S CARELESSNESS LEADING TO

NEGLIGENCE.

The basis of the decision of the House of Lords in McKew v.

H o l l a n d & H a l l e n & C u b i t t s ( S c o t l a n d ) L t d 5. , w a s t h a t t h e
pursuer’s conduct amounted to a nova causa interveniens because,
even though it may have been foreseeable, it was unreasonable in
the circumstances. The rationale of nova causa intervenies is
fairness between the parties.

I n D o n o g h u e v . S t e v e n s o n 6, L o r d M a c m i l l a n h e l d t h a t t h e l a w
takes no cognizance of carelessness in the abstract. It concerns

3
Black’s Law Dictionary, Seventh Edition

4
Blake v Galloway [2004] CA
5
McKew v. Holland &Hallen&Cubitts (Scotland) Ltd 1969 3 ALL E.R. 1621 (H.L.SC.)
6
1932 AC 562

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itself with carelessness only when there is duty to take care and
breach of it has caused damage. In such a case only carelessness
would assume to be given the legal quality of negligence. As in
the instant case the Plaintiff was given a standardised list of
required documents which are usually essential for issuance of
Australian visa. The Plaintiff being a well-educated man owed a
duty to follow the list and carefully submit all the documents in
order, and his failure to comply with this resulted in the damage
incurred. Moreover there were holidays of such nature that could
not have been avoided.

The liability of negligence cannot co-exist with the judgement of

an individual.7 Therefore, the delay caused is due to the conduct
of the Plaintiff himself.

1.4 NO ACTIONABLE NEGLIGENCE

Actionable negligence consists in the neglect of the use of

ordinary care or skill towards a person to whom the Defendant
owes the duty of observing ordinary care and skill, by which
neglect the Plaintiff has suffered injuries to his person or
property.8

The Defendant used all the ordinary and reasonable care and skill
in ensuring that the Plaintiff gets the visa on time, it was not
negligent in any way, and also the damages claimed by the
Plaintiff are exorbitant and lack proximity to the act of the
Defendant.

An act can be negligent when the person who has a duty of care to
perform it omits to do so. The Defendant here has not omitted any
duty which it had towards the Plaintiff and used ordinary skill
and care towards the Plaintiff. Thus it can be inferred that the
Defendant did not act negligently and therefore the action for
negligence cannot be brought about.9

The Defendant herein will not be guilty of negligence as it has

acted in accordance with a general practice with reasonable care
t h a t i s r e c o g n i z e d a s p r o p e r i n t h e o r d i n a r y c i r c u m s t a n c e s . 10

7
Per Tindal, C.J.in Vaughan v. Menlove, (1837) 3 Bing NC 468,475
8
Heaven v Pender,(1883) 11 QBD 503;Swan v. North British Australasian co.,(1862)7 H&N 60
9
Governors of Pwabody donation fund v. Sir Lindsay ParkisonCo.Ltd. (1984) 3 ALLER 529:(1985)A 210
10
Bolam v Friern Barnet Hospital Management Committee (1957) QBD;
https://sixthformlaw.info/02_cases/mod3a/aqa/_cases_tort_2breach.html

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ISSUE 2: W H E T H E R T H E P L A I N T I F F I S E N T I T L E D T O
COMPENSATION?

Compensation is payment of money by a person whose acts or

omissions have caused loss or injury to another, in order
that thereby the person damnified may receive equal value of, or
b e m a d e w h o l e i n r e s p e c t o f h i s i n j u r y . 11

A s s t a t e d i n t h e c a s e o f M a l l e t v . M c M o n a g e 12, b y L o r d D i p l o c k ,
“The court must make an estimate as to what are the chances that
a particular thing will or would have happened and reflect those
changes, whether they are more or less than even, in the amount
of damages which it awards.”

2.1 REMOTNESS OF DAMAGES

The dominant question in the determination of Defendant’s

liability is whether the harm in respect of which he is sued was a
f o r e s e e a b l e c o n s e q u e n c e o f h i s n e g l i g e n t a c t . 13

One would be liable for the damage if his wrongful act materially
caused the delay, notwithstanding there were other factors that
c o n t r i b u t e d t o t h e d e l a y . 14

As proved above the acts of the Defendant did not cause damage
to the Plaintiff as the damage of the Plaintiff lack foreseeability
as the Defendant had taken all necessary and ordinary care. And if
the damage is not foreseeable it does not make out a case for
compensation.

As per Scrutton L.J, damage is indirect if it is, “due to the

operation of independent cause which have no connection to with
t h e n e g l i g e n t a c t , e x c e p t t h a t t h e y c o u l d n o t a v o i d t h e r e s u l t s . ” 15

11
Black’s law dictionary, Seventh edition
12
[1970]A.C. 166 at 176
13
Winfeild&Jolowicz ,Tort , eighteenth edition, Pg 334, para 3.

Bonnington Castings v. Wardlow, (1956) AC 613 (HL):Mc Ghee v. National Coal Board,(1972) 3 ALL ER
14

1008

15
[1921]3 K.B. at 577

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As reiterated in the wagon mound case, the requirement that the

foreseeable damage must be of the same “kind” as the damage
which actually occurred. Therefore, even though the Plaintiff
missed his flight, it could not be foreseen by the Defendant and as
a result it does not make the Defendant liable to pay any amount,
let alone the exorbitant amount of compensation that the Plaintiff
is claiming.

Hence, the Defendant proves that the Plaintiff is not entitled to

compensation.

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ISSUE 3: WHETHER THE DEFNADANT PROVES THAT THE

STATEMENTS OF THE PLAINTIFF AMOUNT TO
DEFAMATION?
It is most humbly and respectfully submitted before this Hon’ble
Court that the statements of the Plaintiff are defamatory because
of the under mentioned.
Defamation is defined by Dr. Winfield as the publication of a
statement which tends to lower the reputation of a person
generally in the eyes of right thinking people of society or which
t e n d s t o m a k e t h e m s h u n o r a v o i d t h a t p e r s o n . 16
The wrong of defamation maybe committed either by way of
writing, or its equivalent, or by way of speech. The term ‘libel’ is
used for the former kind of utterances, ‘slander’ for the latter.
Libel is a written, and slander is a spoken, defamation.
3.1 THE STATEMENTS OF THE PLAINTIFF ARE
DEFAMATORY.
A defamatory statement is a statement calculated to expose a
person to hatred, contempt or ridicule, or to injure him in his
trade, business, profession, calling or office, or to cause him to
be shunned or avoided in society. To be defamatory, a statement
need not only have the tendency to affect a person’s reputation; it
n e e d a c t u a l l y l o w e r i t . 17
I n D e C r e s p i g n y v . W e s e l l e y , 18 i t w a s h e l d t h a t t h e d e g r e e o f
suffering occasioned by loss of character, and compare it with the
occasioned by the loss of property, the amount of the former
injury far exceeds that of the latter.
The statement complained of has to be read as a whole and the
words used in it are to be given their natural or ordinary meaning
w h i c h m a y b e a s c r i b e d t o t h e m b y o r d i n a r y m e n . 19
The Defendant here is a well reputed travel agency and therefore
the Plaintiff’s statements should be read as whole which resulted

16
Dr. Winfield: TORT 9 (Seventeenth Edition, 2006) p. 298.

17
Ratanlal and Dhirajlal: Law of Torts, Updated Twenty Sixth Edition

18
1829, 5 Bing 392.
19
Ramakant v. Devilal, 1969 MPLJ 805 (G.P. Singh. J.)

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in damage to the Defendant’s goodwill, reputation, thus affecting

its business negatively.
The meaning of words in a libel action is matter of impression as
a n o r d i n a r y m a n g e t s o n t h e f i r s t r e a d i n g , n o t o n a l a t e r a n a l y s i s . 20
For an ordinary man construction in legal sense is not the
question. He can read between the lines in the light of general
k n o w l e d g e . 21 H e n c e t h e s t a t e m e n t s o f t h e P l a i n t i f f c a n b e
attributed their ordinary meaning as any layman would interpret.
It is libellous to publish that a man is unfit to be trusted with
m o n e y . 22 T h e P l a i n t i f f i n h i s s t a t e m e n t r e f e r r e d t o t h e D e f e n d a n t
as “cheats” and “thieves”. He indicated that the Defendant cannot
be trusted with money.
3.2 THE STATEMENTS ARE FALSE AND ARE PUBLISHED.
I n C h a n n e l S e v e n A d e l a i d e P t y . L t d . v . M a n o c k 23, i t w a s h e l d t h a t
comments made may only be defended as fair if it is comment in
facts stated or sufficiently indicated. It must be indicated with
reasonable clarity by the words themselves taking them in the
context and the circumstances in which they were published that
they claim to be comment and not statement of fact.
The Defendant must show that the imputation made or repeated by
h i m w a s t r u e a s a w h o l e i n e v e r y m a t e r i a l p a r t t h e r e o f . 24 I n g r o s s
exaggeration, the plea for justification will fail, it must be proved
t h a t i t i s t r u e . 25
The imputation by the Plaintiff amounts to gross exaggeration as
the Defendant’s act cannot be attributed to the acts of that of
thieves or cheats. Due care of duty was ensured by the Defendant
and thus such words do not hold true. The libel published is in
permanent form i.e. on the Plaintiff’s social media handle.

20
Hayward v. Thompson, (1981) 3 All ER 450 (458) (CA); Telikoff v. Matusevitch, (1991) 4 All ER 817:
(1992) 2 AC 343.
21
Lewis v. Daily Telegraph, 1963 2 All ER 151 (HL) (154); Ramakant v. Devilal 1969 MPLJ 805 (G.P. Singh.
J.)
22
Cheese v. Scales (1842) 10 M&W 488.
23
2007, 82 ALJR 303, p. 313 para 35.

24
Weaver v. Lloyd, (1824) 4 D&R 230; Khair-ud-Din v. Tara Singh, (1926) ILR 7Lah 49.

25
Watkin v. Hall, (1868) LR 3 QB 396.

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The Plaintiff tweeted, “Travel Solutions Private Limited- a bunch

of liars, cheats and thieves with no ethics. The worst company
ever.” The Plaintiff further uploaded a picture and a post placing
the entire blame on the Defendant. He ended the post with
#TSPLsucks and logo of the Defendant.
The words complained of should be communicated to some person
o t h e r t h a n t h e D e f e n d a n t . 26 T h e d e f a m a t o r y s t a t e m e n t s p u b l i s h e d
by the Plaintiff are on social media platforms, the access to which
is available to the world at large. Furthermore, the Facebook post
was shared several hundred times and his tweet was retweeted
several thousand times.
3.3 PRESENCE OF MALICIOUS PROPAGANDA.
Malice means in law wrongful intention. It includes any intent
which the law deems wrongful, and which therefore serves a
ground of liability. Any act done with such an intent is, in the
l a n g u a g e o f l a w , m a l i c i o u s . 27
A slander may be uttered in the heat of the moment, and under a
certain provocation; the reduction of the charge into writing and
its subsequent publication in a permanent form show greater
d e l i b e r a t i o n a n d r a i s e a s u g g e s t i o n o f m a l i c e . 28
I n O g i l v i e v . T h e P u n j a b A k h b h a r a t & P r e s s C o . , 29 i t w a s h e l d t h a t
if a man has stated that which is false and defamatory, malice is
assumed.
The Plaintiff is a learned man who is well aware of the fast pace
and broad horizons of social media. Outburst as a result of
frustration and in the heat of the moment can be comprehended.
But to put it in writing, as done by the Plaintiff on his social
media handles, shows that he reflected upon it and acted on it.
The defamatory allegations against the Defendant show the
presence of malice.
Hence, the statements of the Plaintiff amounts to defamation.

26
Barrow v. Lewelli, (1615) Hob. 62: Pullman v. Hill & Co., (1891) 1 QB 524: 39 WR 263: 64 LT 691

27
Black’s Law Dictionary, Seventh Edition, p. 968

28
Clement v. Chivis, (1829) 9 B & C 172

29
1929, ILR, Lah 45; Lt. Col. Gidney v. The A.I. & D.E. Federation, (1930) ILR 8 Ran 250

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ISSUE 4: IS THE DEFENDANT ENTITLED TO

COMPENSATION?
It is most humbly and respectfully submitted before this Hon’ble
Court that the Defendant is entitled to compensation.
Compensation is defined as payment of damages, making amends;
that which is necessary to restore an injured party to his former
p o s i t i o n . 30 A n a c t w h i c h a c o u r t o r d e r s t o b e d o n e , o r m o n e y w h i c h
a court orders to be paid, by a person whose acts or omissions
have caused loss or injury to another, in order that thereby the
person damaged may receive equal value for his loss or be made
w h o l e i n r e s p e c t o f h i s i n j u r y . 31
A libel is in itself an infringement of a right and no actual
d a m a g e n e e d b e p r o v e d i n o r d e r t o s u s t a i n a n a c t i o n . 32 A n a c t i o n
may be maintained for defamatory words reduced into writing,
w h i c h w o u l d n o t h a v e b e e n a c t i o n a b l e i f m e r e l y s p o k e n . 33
The ambit of social media information is known to any prudent
man. The circulation of such information are seldom done with
authentication. As a result it can cause to have an impact on
judgements of the public at large.
Insulting words which are likely to expose a person to ridicule
a n d h u m i l i a t i o n a r e a c t i o n a b l e . 34 A l s o , o r i g i n a t o r w i l l b e l i a b l e
for the damage resulting from repetition where the repetition was
t h e n a t u r a l a n d p r o b a b l e c o n s e q u e n c e o f h i s a c t . 35
Every repetition of defamatory words is a new publication and a
d i s t i n c t c a u s e o f a c t i o n . 36 T h e w i d e s p r e a d c o n d e m n a t i o n o n t h e
internet could have been easily foreseen by the Plaintiff.

30
Black’s Law Dictionary, Second Edition, p. 232.

31
Railroad Co. v. Denman , 10 Minn., 250 (Gli. 208).

32
The Law of Torts: Ratanlal&Dhirajlal, Updated Twenty Sixth Edition., p. 266

33
Thorley v. Earl of Kerry, (1809) 3 Camp. 214 N.

34
SurajNarain v. Sita Ram (1939) ALJR 394.

35
The Law of Torts: Ratanlal&Dhirajlal, Updated 26th Edition, p. 291

KaikshuruNaorojiKabraji v. JehnagirByarmjiMuzban, (1890) 14 Bom 532; Watkin v. Hall, (1868) LR 3 QB

36

396: Waithman v. Weaver (1882) 11 Price 257.

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Therefore, the Plaintiff also becomes liable for the circulation of

his tweet and Facebook post.
I n E . H a u l t o n & C o . v . J o n e s 37, i t w a s h e l d t h a t a p e r s o n c h a r g e d
with libel cannot defend himself by showing that he intended in
his own heart not to defame or that he intended not to defame the
Plaintiff, if in fact he did both.
The intention or motive with which the words are used is
immaterial, and if the matter complained of does refer, or would
be deemed by reasonable people to refer, to the Plaintiff, the
a c t i o n c a n b e m a i n t a i n e d . 38
In his Facebook post the Plaintiff put a logo of the Defendant and
a hashtag #TSPLsucks. This amounts to clear indication that he
had the intention to defame the Defendant.
I n t h e l e a d i n g c a s e o f P a r v a t h i v . M a n n a r 39, i t h a s b e e n h e l d t h a t
mental distress caused by abusive words which amount merely to
an insult is not actionable, but mental distress caused by words of
abuse which are also defamatory is actionable and no special
damage need be proved.
Owing to the acts of the Plaintiff, the Defendant suffered
immense loss of image, reputation and good-will. The Plaintiff
made false allegations of deficiency of service and aimed to
defame the Defendant. As a result of the social media
misinformation the sales of the Defendant went down as well.
Hence, the Defendant is entitled to compensation.

37
1910, AC 20, 23: 101 LT 831: 26 TLR 128.

Newstead v. London Express Newspapers Ltd., (1939) 2 KB 317; Union Benefit Guarantee Company v.
38

Thakorlal , (1935) 37 Bom LR 1033; Baba Gurdit Singh v. “Statesman Ltd.”, (1935) ILR 62 Cal 838.

1884, ILR, 8 Mad 175, 180; KoneeSubhadra v. Subbarayadu (1990) 10 MLJ 83; Leslie Rogers v. Hajee Fakir
39

Muhammad Sait, (1918) 35 MLJ 673; Subbaraidu v. SreenivasaCharyulu , (1926) 52 MLJ 87.

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PRAYER
Wherefore in the light of issues raised, arguments advanced and
authorities cited, the Defendant most humbly prays before this
Hon’ble Court to declare and adjudge that:
 That this Hon’ble Court may be pleased to declare that the
Plaintiff through its defamatory statement caused loss of
reputation to the Plaintiff.
 That may be pleased to direct the Plaintiff to issue an
apology and pay to the Defendant a sum of Rupees Five
Crore as compensation for the loss of business, goodwill,
reputation and for the defamation caused to the Defendant
 Cost of the suit be provided for.
And to pass any order or relief in Favour of the Defendant which
this Hon’ble court may deem fit in the larger interest of justice.
For this act of kindness the counsel shall remain duty bound
forever.
All of which is respectfully submitted.

MEMORANDUM ON BEHALF OF DEFENDANT