The High Court dismissed an appeal against the TDSAT order setting aside two of four directions by the Adjudicating Officer. The Court clarified that Rule 9 prevents pursuing the same matter in multiple forums simultaneously but does not render High Court orders non-est.
The appeal against the TDSAT order was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
19-ASIFA-FA-1216-2022.DOC
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION INTERIM APPLICATION NO. 19426 OF 2022
IN
FIRST APPEAL NO. 1216 OF 2022
Just Dial Ltd...Applicant
In the matter beteween
Just Dial Ltd…Appellant
Versus
IndiaMart Intermesh Ltd & Ors…Respondents
Mr Sanjay Jain ,with Anoshak Daver, Harsh Behany, Neena Shah, Gaurav Gandhi & Saloni Manjrekar i/b Harsh L Behany for the Applicant.Dr Birendra Saraf, Senior Advocate, with Vikrant Singh Negi, Ekta
Tyagi & Pratik Thakkar i/b DSK Legal for the Respondent No.1
CORAMG.S. Patel &
Gauri Godse, JJ.
DATED:10th November 2022
PC:-
1. The Appeal stands admitted. It is ready for final disposal.
2.The Appeal is directed against an Order dated 6th December
2021 passed by the Telecom Disputes Settlement and Appellate
Tribunal (“TDSAT”) in New Delhi. By the impugned order,
passed in Cyber Appeal No. 2 of 2021, the TDSAT set aside two of
the four directions passed by the Adjudicating Officer (“AO”) on a
Digitally signed by RAJESHWARI RAJESHWARI RAMESH RAMESH PILLAI PILLAI Date: 2022.11.11 14:49:21 +0530
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complaint made by the present Appellant, Just Dial Limited. The
Appeal was filed by the Respondent to the complaint, the present
Respondent to the First Appeal, IndiaMART InterMESH Limited
(“IndiaMART”).
3.The details of Just Dial’s original complaint before the AO,
(the Principal Secretary (Information Technology) of the
Government of Maharashtra) in Case No. 1 of 2021 need not be set
out in detail. It is sufficient to note that Just Dial’s case was that
IndiaMART had illegally and unauthorisedly accessed Just Dial’s
online database by various methods and technologies. On 5th March
2021, the AO passed an Order with the following four directions:
“1.Rule 9 of the Enquiry Rules states that, “When an
adjudication into a matter of contravention is pending
before an Adjudicating Officer, same matter shall not be
pursued before any court or Tribunal or Authority in any
proceeding whatsoever and if there is already filed a report
in relation to the same matter, the proceedings before such
other court, Tribunal or Authority shall be deemed to be
withdrawn.
Pursuant to the above-mentioned Rule, till the instant case
is pending before this forum, if the same subject matter is
being pursued by the parties before any other forum, the
same shall be withdrawn from such other forum;
2.As the interim relief sought by the Complainant
cannot be granted without adjudicating upon the instant
matter in its entirety, Order on the Interim application shall
constitute part of the Final Order;
3.The Respondents are directed to submit the relevant
documents in order to enable the Complainant to calculate
damages in the current matter and are also directed to
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submit the acknowledgement of the delivery of the
documents before this forum either through the e-mail ID
or registered post;
4.Basis the submissions advanced by the parties and
documents produced on record, there is sufficient cause to
hold enquiry against the Respondents under Rule 4(g) of
the Enquiry Rules. In view of the same, a Hearing Notice
specifying the date and manner of hearing shall be issued to
the parties in due course of time.”
4.Indiamart filed Cyber Appeal No. 2 of 2021 against this order.
There was no challenge to directions 1 and 2 of the AO.
5.Rule 9 of the Information Technology (Qualification and
Experience of Adjudication Officers and Manner of Holding
Enquiry) Rules 2003 reads thus:
“9.Duplicity Avoided :When an adjudication into a
matter of contravention is pending before an Adjudicating
Officer, same matter shall not be pursued before any court
or Tribunal or Authority in any proceeding whatsoever and
if there is already filed a report in relation to the same
matter, the proceedings before such other court, Tribunal
or Authority shall be deemed to be withdrawn”.
6.On a plain reading what this means is that once a complaint is
filed before the AO, the complainant cannot bring another
proceeding regarding “the same matter” before another court,
Tribunal or Authority. If a report has been filed in the same matter
then the subsequent case before such other Court, Tribunal, or
Authority is, by a deeming fiction, to stand withdrawn. The clause,
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reproduced above, despite the unfortunate wording of its heading, is
quite unambiguous.
7.As a general principle what such a clause says is that the same
matter cannot be pursued simultaneously in two different forums. It
intends to prevent forum shopping and to prevent conflicting orders
by two different adjudicating authorities or tribunals. But this does
not mean that what a complainant says in one forum cannot be
relied on in a properly contested proceeding in another forum. What
is to be made of that pleading or application is a matter left to the
decision making authority.
8. This is of some significance, because, according to Mr Jain for the Appellant the TDSAT has quite impermissibly interfered with the AO’s order in regard to Direction No.1, although this was never a ground of Appeal. He says so because in Paragraph 16 TDSAT observed as follows:
“16. It is useful to indicate that when some related issues are pending before Constitutional Courts such as High Court, the orders passed by such courts, more so between the parties deserve highest respect despite the provisions in Rule 9. This should also be kept in mind while passing order in accordance with law”.9.With respect we do not read this paragraph as meaning that
the TDSAT directed the AO to function in contravention of Rule 9.
All that the TDSAT has done is to say that a proceeding in the High
Court cannot be simply ignored in its entirety.
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10.This is important because it is Just Dial, the complainant,
which not only filed a complaint before the AO under the
Information Technology Act, 2000 but also filed a suit against
Indiamart on the Original Side of this Court relating to the same
data. An Interim Application in that matter was moved before one of
us, GS Patel, J sitting singly. On 2nd February 2021, ad interim
relief was refused.
11.This, therefore, is a very strange situation. Just Dial is the
Applicant before the AO. It is also the Plaintiff before this Court.
What it seeks before the AO is that its own subsequently filed suit in
this court be ignored by virtue of Rule 9. All that TDSAT said is
that orders passed by the High Court should be taken into account
and cannot be entirely ignored when considering an application
before the AO, whether for interim relief or otherwise. There is
nothing exceptionable in the approach of the TDSAT. In fact, we
believe it is the correct approach. That the subsequent proceeding is
deemed to be withdrawn cannot and does not mean that orders of
the other Court, especially the High Court, are non-est or void.
12.Then TDSAT set aside the AO’s directions 3 and 4. These
have been extracted above. We believe that TDSAT was completely
correct in its approach. Direction 3 asked for the production of
documents by IndiaMART “to calculate damages in the current
matter”. But that inquiry or order of forcible discovery “to calculate
damages” can only follow a conclusion arrived at in a reasoned
manner that there is in fact a cause of action and that IndiaMART in
fact is liable under that cause of action. First liability is to be
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ascertained, and only then will come question of computation of
damages. Whether or not damages can be computed on the basis of
documents compelled from IndiaMART is also another matter to be
taken into account, that is to say whether it is Just Dial that should
first be asked to establish its own case on damages or whether it can
do so simply by compelling documents from its opponent.
13. Direction 4 of the AO was correctly set aside by TDSAT as
being entirely unreasoned. We agree. There are simply no reasons
provided by the AO to hold that there is sufficient cause made out.
14.The TDSAT did not do anything more then remit the matter
to the AO for a decision afresh on directions 3 and 4 in accordance
with law. It also gave Just Dial an opportunity to file an appropriate
application for discovery in a different fashion if thought fit.
15.As regards Rule 9, it is sufficient for us to clarify that the
TDSAT order, correctly read, does not require the AO to reject an
application for interim relief merely because ad-interim relief has
been refused by this court in Just Dial’s aforesaid suit. All
contentions in that regard are obviously kept open on both sides
before the AO.
16. It is undoubtedly open to both sides to rely on the papers and
proceedings in the High Court suit for their respective purposes.
17.We have expressed no opinion in regard to merits of the
application before the AO. For that matter neither has the TDSAT.
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18.In our view, the impugned order of the TDSAT calls for no
interference. For the reasons set out above, and with the
clarifications we have made, the Appeal is dismissed.
(Gauri Godse, J)
(G. S. Patel, J)
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3 issues framed by the court
Whether Rule 9 of the Enquiry Rules deems proceedings before other forums withdrawn when the same matter is pending before an Adjudicating Officer.
Whether the Adjudicating Officer's direction to produce documents to calculate damages was a reason for setting aside by the TDSAT.
Whether the TDSAT can require the Adjudicating Officer to consider High Court orders when applying Rule 9.
1 provisions across 1 enactments
Just Dial Ltd
IndiaMART Intermesh Ltd
G.S. Patel
Gauri Godse
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court