Legal Documents of Defamation & Contempt Cases against us - Lodha Developers Limited v. Krishnaraj Rao & Ors - Suit (L) No. 70 of 2019

Mumbai, January 23, 2019: The Defamation case against us (Krishnaraj Rao, Shilpi Thard & her husband Amit Jaisingh) filed by Lodha Developers Limited, and subsequent proceedings including Contempt, are uploaded on this link: http://bit.ly/Lodha-Defam-Krish-Shilpi

(PS: One critical document is missing in this folder, namely the actual Defamation plaint and pleadings i.e. Notice of Motion no. 152 in Suit No. 70 of 2019. I will upload this at the earliest. I will also upload scan of my Affidavit-in-reply to this plaint, as filed before Bombay High Court at the first hearing two days ago on 21st January.

Below is the soft-copy/draft of my Affidavit-in-reply. (I am publishing it here for the understanding of the public. Having been filed before the High Court, it is already a public record, and so my disclosure of these documents here will hopefully not be construed as defamation/contempt.)
___________________________________________________


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. (L) 152 OF 2019
IN
SUIT NO. (L) 70 OF 2019


            Lodha Developers Limited                                     …Org. Plaintiff/ Applicant

                        Versus

            Krishnaraj Rao &Ors.                                              …Org. Defendants/ Respondents


AFFIDAVIT IN REPLY OF NOTICE OF MOTION

            I, Krishnaraj Rao, aged 53 years, residing at 501, A Wing, Raheja Green,Raheja Estate, Kulupwadi, Borivali East – Mumbai 400066 do hereby solemnly affirm and state as under:-

1.         I say that the above Suit filed by the Plaintiff is a false, frivolous and vexatious and has been filed with ulterior motives and ought to be dismissed in limine with compensatory costs. The Plaintiff have not come to this Court with clean hands as they have suppressed several material facts from this Hon’ble Court and on that ground also the above Suit is required to be dismissed in limine with compensatory costs.

2.         I say that my Advocates were served a copy of the Suit and the above Notice of Motion on 18 January 2019 at ____p.m. and I was served a copy of the Plaint and the above Notice of Motion by the Advocates for the Plaintiff at about 6.30 p.m. on 19January 2019 with intimation that the Notice of Motion will be heard by this Hon’ble Court for granting ad-interim reliefs on 21January 2019. In view of the short time available to me, I am filing this Affidavit in Reply for the purposes of opposing the ad-interim reliefs only prayed by the Plaintiff and I reserve my right to deal with each and every statement, contention and allegation contained in the Plaint and the above Notice of Motion. I deny generally and specifically all the statements, contentions and allegations made by the Plaintiff in the Plaint and the above Notice of Motion and nothing contained therein shall be an admission or deemed to be an admission for want of specific traverse and/ or denial. I particularly denounce the language, tenor and direct allegation by the Plaintiff in paragraph 3 of the Plaint against me personally without supporting evidence or proof. The allegations in paragraph 3 made by the Plaintiff against me display the arrogant and perverse mindset of the Plaintiff which does not want to accept just and fair criticism or fair comment on its products.

3.         I say that I am a journalist, a blogger, an activist and a consultant with considerable and specific knowledge, exposure and experience regarding the inner workings of the real estate industry. I also have specific domain knowledge of common fire safety issues and breaches, co-operative law, RERA, MOFA and other acts relating to the real estate sector. I am an RTI activist and a campaigner for transparent and good governance. I have conducted workshops and lectures at many forums such as Food Corporation of India, the audit department of Central Government, the Government Law College, Mumbai, municipal schools, ICAI and also civil society organisations like the Lions Club, the Rotary Club and NGO’s. I frequently give lectures at Pravinchandra Gandhi Law College, Vile Parle (W), Mumbai on various topics including proper use of Right to Information Act 2005. I have been regularly campaigning for and issuing press releases for the past more than a decade with regard to public interest issues regarding whistle blowers protection and legislations for banning of gutkha. I have been holding workshops for educating the public in important matters such as amendment of RTI rules in Maharashtra, amendment of Maharashtra Co-operative Societies Act, 1960 etc, applicability of RERA, etc.

4.         I say that on the issue of fire safety in buildings, I have been invited as a panellist by several TV channels various times after major fire accidents that happen from time to time in Mumbai to give my views on the causes and remedies for preventing recurrence of fire accidents. I have also been invited by several TV channels various times to give my views on the issues of construction, fire safety, building permissions, common investor grievances, redevelopment and financial dealings in the real estate industry.

5.         I say that I daily receive telephone calls from various persons not personally known to me, who have either read my blogs or know me from various sources, who have a grievance on account of the conduct and dealings of builders, managing committees of co-operative societies etc. I spend a lot of time and energy in guiding them to resolve their grievances. Some of them approach me to highlight their grievances through my blogs, press releases and videos. I consider the gravity and appropriateness of the issue based on my own assessment based on site visits and discussions with the aggrieved parties. It has been my standard practice acquired during my journalistic career to send the final draft of my blog/ press release/ video before publishing it, to the complainant as well as the builder/society against whom the issues have been raised for the builder’s/society’s rebuttal/ rejoinder. If any rebuttal/ rejoinder is received by me from the builder/society before the publication or even afterwards, I publish it verbatim with equal weightage. In view of the aforesaid, I can say that I have been honest to both sides in a dispute and upheld the high ethical standards of my vocation. Most of my work is done pro bono, at times I charge a nominal fee, the quantum whereof is left to the discretion of the party at whose behest I take up the work.

6.         I say that I have been an independent investigative journalist since 1985 and have even prior to my graduation in 1986, written articles on issues of national importance. It has been my special interest to study the selling techniques, paper work and development of projects by leading developers like the Plaintiff in order to guageif the developers are acting in a transparent manner and delivering on their promises to their customers.To report on such matters, I usually undertake site visits and interact with the representatives of the developers and with the home buyers. In my endeavour aforesaid, I often pose as a consumer to visit the sales offices and projects of leading developers such as the Plaintiff. I have been personally acquiring knowledge and information of the malpractices being committed by the Plaintiff in various projects (other than the Lodha New Cuffe Parade Project), and discovered many malpractices, which were later confirmed by many victims who contacted me.  Finding the malpractices of a serious nature, I started writing blogs to caution and educate the consumers, so that they could avoid pitfalls and take an informed decision. As was my practice, before writing each blog, I have sent emails to the Plaintiff’s representatives inviting their response/ rebuttal to the contents of the blog, but I never received any response/rebuttal from the Plaintiff to any of my emails. Hereto annexed and marked Exhibit “1 (colly)” are copies of several blogs posted by me on the internet with regard to other projects of the Plaintiff prior to the publication of the alleged Offending Material (as defined in the Plaint). Hereto annexed and marked Exhibit “2 (colly)” are copies of the invitation sent by me to the Plaintiff to give their response/ rebuttal to each such blog comment.

7.         The Defendant No. 2 approached me for the first time on or about 22nd September 2018 with regard to her grievances in respect of the Lodha New Cuffe Parade Project being developed by the Plaintiff (hereinafter referred to as “the Project”). After meeting her and perusing the documents executed between the Plaintiff and the Defendant Nos. 2 and 3 and visiting the site of the Project and taking photographs and videos on 15th October, I noticed several deficiencies and defects in the flats bought by her as well as the Project also and which are briefly stated as under:-

(a)       All the internal walls and some part of the external walls of the flats are extremely fragile, made of gypsum board and do not provide even ordinary resistance to bare handed force. Moss was seen growing on the internal wall of her flat as evidenced in one video. The material when examined showed extreme vulnerability to moisture and water;

(b)       Extremely wet sand was observed to be present not only near the bathroom but also the visual evidence suggested that it was present under the floor tiles of the sitting room. Mineral deposits were seen “blooming” from the joints between the floor tiles in the sitting room. Evidence of damage to walls due to moisture was evident throughout the flats;

(c)       The quality of the wooden flooring was extremely poor

(d)       The presence of gypsum board next to the front door of one of the flats was suggestive that it was vulnerable to theft from a drainage duct immediately outside the door which also has gypsum board or similar material which can easily be broken;

(e)       Drainage shaft directly outside the front door is a non-standard feature in any residential project;

(f)        Presence of a large drainage shaft in the master bedroom in one of the flats is potentially a cause for very poor hygiene and a continuous source of noise of toilets being flushed and running water;

(g)       The above mentioned drainage shafts connect the flats on the floors above and below and this brings with it the grave hazard of a fire in the flat below becoming a cause of rapid spread of smoke and fire to all the flats above and below that flat and especially above. It was observed that these drainage shafts are not sealed by a slab at each floor level;

(h)       It was observed that drainage pipelines of the upstairs neighbour are given inside the flat of the downstairs neighbour and only slightly concealed by a false ceiling in the bathrooms. This means that in the event of the upstairs flat developing a clogging issue, the repair work will be performed at the bathroom of the downstairs flat. It also means that in the event of leakage in any of the drain pipes of the upstairs flat, the false ceiling of the downstairs flat will have to be opened to repair the leakage and a new false ceiling will have to be installed;

(i)        It was observed that mandatory open spaces required for fire fighting operations in the event of a fire are not available throughout the Project. Nearly 100% of the mandatory open spaces around all of the residential towers which are currently occupied are taken up by structures that would obstruct access to fire engines, ladders, snorkels etc. which would be required to extinguish the fire in a timely way and rescue the victims from the refuge areas;

(j)        It was observed that refuge areas were not as per commonly accepted specifications. They contain windows with closures on the outer side, and more alarmingly, they contain windows on the inner side of the refuge flats which can allow ingress of smoke and fire and toxic fumes in the eventuality of a fire in any flat directly below that refuge area;

(k)       It was observed that there are numerous chimney type structures within the common areas by which fire, smoke and toxic gases can rapidly spread unchecked in the event of a fire in a single flat;

(l)        It was observed that due to the faulty fitting of gypsum board/ fire resistance gypsum board (pink) in the above mentioned drainage ducts, the fire safety of the building is further compromised;

(m)      The poor quality of the fitting of the gypsum board walls in the flats amounts to a complete lack of fire rated walls which further heightens the possibility of a small and containable fire turning into a large and uncontrollable inferno;

(n)       It was repeatedly observed that most of the pressure gauges in the sprinkler pipes showed zero pressure indicating that in the event of a fire the sprinklers would completely fail to activate;

(o)  It was observed that the 2 small recreation/ play grounds were unsuitable for use by children for games like football or cricket on account of the presence of several large cement blocks thereon;

(p)       It was observed that there are large numbers of indentations in the concrete podium where substantial amount of water collects for days and months growing moss and algae and mosquito larvae;

(r)        It was observed that the basement has very few air circulators and has insufficient mechanism for ventilation giving rise to the omnipresent risk of an uncontainable fire, spread of toxic gases throughout the basement and also giving rise to a possible casualties by suffocation;

(s)       It was observed that carbon monoxide monitors fitted in the basement are not operational as they have not been calibrated. If the presence of carbon monoxide above the danger level is not detected in a timely manner, it can cause death due to suffocation;

(t)        It was observed that the sprinkler pressure in the basement is also zero and the cover of the smoke detectors and the seal of the sprinklers in the lower basement have not been removed indicating that the sprinkler system would fail to activate on a fire;

(u)       It was observed that the number and distance of fire exits are very few giving rise to concerns of people being unable to evacuate in a timely manner;

(v)       It was observed that there is no fluorescent marking on the floor and only one small fire exit signage near the fire exit itself which cannot be seen from a distance. Lack of adequate fluorescent strips and signages can cause casualties;

(w)      On 15th January, the Defendant No. 2, her architect Mr.Sujay Nadkarni and myself were physically prevented and obstructed by the security guards of the Plaintiff, frustrating our efforts to get further information about the quality of the flats and common areas in the Project.

(x)       The Defendant No. 2 had engaged architect Mr.Sujay Nadkarni to measure the carpet area of the flats purchased by the Defendant No. 2 and it has emerged from the report of the architect aforesaid that there is shortfall of 274.43 sq. ft. in the carpet area in respect of Flat No.3103 and shortfall of 363.15 sq. ft. in the carpet area in respect of Flat No.3104;

(y)       The above deficiencies and defects among others do not befit a “high end residential category” product developed by India’s largest developer.  

8.         I say that I also spoke to other flat purchasers in the Project, who had substantially the same grievances as the Defendant No. 2. In view of the aforesaid, I started writing blogs and preparing videos with regard to the malpractices committed by the Plaintiff in the Project being the alleged Offending Material. Before publishing each of the alleged Offending Material, I sent an invitation for a rebuttal/ rejoinder to the Plaintiff. Hereto annexed and marked Exhibit “3 (colly)”are copies of emails addressed to the Plaintiff and/ or its directors and representatives asking for rebuttal/ rejoinder before its publication thereof.

9.         I say that I have acted based on the facts and as per my conscience as any conscientious citizen journalist ought to act. I have not defamed and did not have any intention to defame the Plaintiff. I have assisted the Defendant No. 2 in bringing to the public domain the deficiencies and the defects in the products sold by the Plaintiff to the Defendant No. 2 for the huge consideration of Rs. 5,88,48,777/- (Rupees five crores eighty eight lakhs forty eight thousand seven hundred and seventy seven only) which does not include stamp duty, registration fees, taxes, unlawful and illegal penalties collected by the Plaintiff and other charges.  The conduct of the Plaintiff is blameworthy and instead of apologising to the Defendant Nos. 2 and 3 and other flat purchasers in the Project, rectifying the deficiencies and defects in the Project and also remedy the financial distress it has caused to the various flat purchasers, the Plaintiff who according to its own statement in the Plaint is the largest developer in India has embarked upon this litigation, falsely alleging that I and the Defendant No. 2 have defamed him.

10.       In view of the aforesaid, I say that I have brought out the truth about the Project in the public domain. I further say that the alleged Offending Material published by me is a fair comment and/ or criticism of the malpractices of the Plaintiff with regard to the Project. I also say that opportunity was given by me to the Plaintiff to send its rebuttal/ rejoinder to me prior to posting of each of the alleged Offending Material, however, the Plaintiff did not respond to me.

11.       I say that the Plaintiff does not have a prima facie case and the balance of convenience is also not in favour of the Plaintiff. My fundamental and constitutional right of free speech and expression will be irreparably damaged if the ad-interim and/ or interim relief is granted by this Hon’ble Court to the Plaintiff. In the circumstances aforesaid, I say that the Plaintiff ought not to be granted the ad-interim/ interim reliefs prayed by it.

12.       I say that whatever is stated hereinabove,is true and correct to the best of my information, knowledge and belief.

Solemnly affirmed at Mumbai       )

ot this ___day of January 2019     )


Identified by me

Advocate for the Defendants                              Before me
______________________________________________________


Folder for Lodha NCP public documents: http://bit.ly/Lodha-NCP-Docs


ISSUED IN PUBLIC INTEREST BY
Krishnaraj Rao
9821588114 / 8169471229
krish.kkphoto@gmail.com


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