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Video Record of DRT Conference at Indore and Chennai:- All the proceedings were video recorded.  During these conferences, eminent DRT experts using PowerPoint Presentation dealt with all the aspects of Bank Litigations and Borrowers Defence. The participants from all over the country were highly impressed and benefited from the knowledge thus gained.

Important Tip to Old and New Visitors:- A visit to new page Synopsis Video Interview - BS Malik, Sr. Supreme Court Advocate will be highly useful. You may take out the print and study the same. Listening to the video interview will be further useful. You may select the clips for replay for discussions with your colleagues as well as the advocates

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Notes on the Law of Torts

(References will be provided to our clients only)

These notes on law of torts are only for information and broad knowledge of the visitors. We have the details and the references of the relevant provisions of law of torts. Actual application law of torts in the drafting of the counter-claim requires in-depth knowledge and experience of law of pleadings, torts, banking and procedural laws etc. Novice applications in law of torts may even spoil the case. We received several cases for redrafting of the counter-claims on account of such technical legal mistakes. Proper application of law of torts enhances the success of litigation in India.

The law of Torts is part of the common law,

" It has also  been  held that section 9 of the  Code of Civil  Procedure, which enables a Civil Court  to try all suits of a civil nature , impliedly confers jurisdiction to apply the law of Torts as principles of justice, equity and good conscience. " - Union Carbide Corporation v Union of India, 1988 MPLJ 540.

      As  stated  by  Lord  Scarman: "  The  common  law,   which   in  a  constitutional  context  means  judicially  developed equity, covers everything  which is not  covered by   statutes  - - - the function of the  court is  to  decide the  case  before   it,  even  though the decision may require the extension or adaptation  of  a  principle  or  in  some  cases  the  creation  of a new  law  to  meet  the  justice  of    the  case, - -   " - Macloughlin v. O'Brian, (1982) All ER 298 (310) (H.L) This is a good basis for the application of the law of torts. 

Our  Supreme  Court  in respect of law of torts has  said   - - -  if an occasion arises the       Court can be more progressive than the English Courts in respect of law of torts and can evolve new principle of tort liability not yet accepted by the English  law. In the words of  Bhagwati C.J.  " We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialised economy. We can not  allow our judicial thinking to be  constricted  by  reference  to  the law as it  prevails in England or for the     matter of that  in  any  foreign country. We are certainly prepared to receive     light  from   whatever   source   it   comes  but  we  have  to  build  our  own     jurisprudence. whatever   source   it   comes  but  we  have  to  build  our  own     jurisprudence. " Hence we are fully justified in applying law of torts in banking and industrial finance.

More recently concerning law of torts, the Supreme Court Judge, Sahai J. observed: " Truly speaking entire law of torts is founded and structured on morality that no one has a right to injure or harm  other  intentionally  or even innocently. Therefore it would be     premitive  to  class  strictly  or close finally the ever-expanding and growing     horizon of tortuous liability.  Even  for social development, orderly growth of     the society and cultural refineness the liberal approach to tortuous liability by courts is  more  conductive." 

//- - --  The  word  ' tort '  is  derived  from  the Latin term tortem to twist and       implies  conduct  which  is  twisted  or  tortious. It now means a breach of some duty independent  of  contract  giving  rise to a civil cause of action and for which compensation is recoverable.  - - -  workable  definition  in  general  terms, a tort  may  be  defined  as a civil wrong independent of contract for which the appropriate remedy is an action for unliquidated damages.

      A tort is a species of civil injury or wrong. - - - no civil injury is to be classed as a tort unless the appropriate remedy for it is an action for damages. It is usual to say that a person is liable in tort irrespective of whether or not a judgment for damages has been given against him. He is liable from the moment he commits the tort.

The Law of Torts governs actions for damages for injuries to certain kinds of rights, like the rights to personal security, property and reputation. ‘ tort ‘  derived from a French word meaning in its etymological sense, a “ twisting out “ and in a popular sense, a crooked act, a transgression from straight or right conduct, a wrong. In this generic sense it (i.e. torts) was introduced into the terminology of English law by the French-speaking lawyers and judges of the courts of the Norman and Angevin Kings of England. Most of the technical terms of English Law are French in origin, - - - usual to speak – ‘ Actions in Contract ‘ and ‘ Actions in Tort ‘ Dr. Winfield has made a critical examination of many possible or current definitions of law of torts and the one suggested by him is as follows; “ Tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressible by an action for unliquidated damages. The early common law was primarily concerned with remedies and not with rights and duties. The damages which a plaintiff has  a right to recover in an action for a tort belong to the category known as ‘ unliquidated damages ‘ This phrase is in law of torts applies to cases where a plaintiff claims not a predetermined and inelastic sum but such an amount as the court in its discretion is at liberty to award, though in his pleading, he may specify a particular amount. The phrase ‘ liquidated damages ‘ refers to a sum which has been predetermined by contract or statute.- -- Damages are usually intended to be a pecuniary compensation for the injury; they are then called substantial damages. They may be awarded with a view to  punish the defendant ; they are then called exemplary, punitive or vindictive damages.

     Tort, as we have seen, aims principally at the prevention or compensation of harm whereas the “ core “ of contract is the idea of forcing certain promises. - - - mere failure to  act will not be actionable in tort. - - - legally binding - - - damages can not be claimed in tort for a “ loss of expectation “ as opposed to  “ out of pocket “ losses, or, as it is sometimes expressed, damages in contract put the plaintiff in the position he would have been in had the contract been performed, whereas damages in tort put him in the position he would have been in had the tort not been committed. - - - plaintiff having the benefit of whichever is more favourable to him on the particular facts.  - - primary duty – for breach of which tortious liability is imposed. The breach of such a duty gives rise to a remedial duty, i.e. a duty to make redress, and this is always owed to a specific person or persons whatever the source of the liability.

2.     The  person committing  a  tort or wrong is  called  a tort-feasor or wrong doer, and his misdoing is a tortious act. The principal   aim   of  the   law  of  torts   is   compensation   of  victims   or  their dependants.  Grant  of  exemplary  damages  in certain cases will show that deterrent of wrong-doers is also another aim of the law of torts. // distinction between a Contract and a Tort  --- A  contract  is  founded upon consent : a tort  is  inflicted   against  or  without  consent,  A  contract necessitates privity between the parties to it : in tort no privity is needed. A tort is a violation of a right in rem i.e. of a right vested in some determinate person, either personally or as a member of the community, and available against the world at large; whereas a breach of contract is an infringement of a right in personam, i.e. of a right available only against some determinate person or body, and in which the community at large has no concern. The distinction between the two i.e. law of torts and law of contracts lies in the nature of the duty that is violated. In the case of a tort the duty is one imposed by the law and is owed to the community at large. In the case of contract, the duty is fixed by the will and consent of the parties, and it is owed to a definite person or persons.- - - Secondly, in a breach of contract, the motive for the breach is immaterial; in a tort, it is often taken into consideration. Thirdly, in a breach of contract, damages are only a compensation. In an action for tort to the property, they are generally the same. But where the injury is to the person, character, or feelings, and the facts disclose improper motive or conduct such as fraud, malice, violence, cruelty, or the like which aggravate the plaintiff’s injury. He may be awarded aggravated damages in the law of torts. Exemplary damages to punish the defendant and to deter him in future can also be awarded in certain cases in tort but rarely in  contract. Another distinction is that the law of torts is aimed at allocation or prevention of losses whereas the law of contract aims to see that promises made under a contract are performed. Same act may amount to a tort and a breach of contract. e.g. father employing  a surgeon to treat his injury.  There may be concurrent contractual and tortious duties owed to the same plaintiff who has a choice of proceeding either in tort or contract except when he must rely on a specific term of the contract as distinct from any duty of reasonable care implicit in the particular relationship brought about by the contract in  which case he has to depend exclusively on his contractual claim. Lord Bridge in the context of an auditor observed: In advising the client who employs him the professional man owes a duty to exercise that standard of skill and care appropriate to his professional status and will be liable both in contract and in tort for all losses which his client may suffer by reason of any breach of that duty.

The law of torts is fashioned as “ an instrument for making people adhere to standards of reasonable behaviour and respect the rights and interests of one another. – violation of protected interests of a person – remedy by  giving him compensation – By  “ interest “ here is meant “ a claim, want or desire of a human being or group of human beings which the  human being or group of human beings seek to satisfy, and of which therefore , the ordering of human relations in civilized society must take account.  “ – A protected interest gives rise to a legal right which in turn gives rise to a corresponding legal duty. Some legal rights are absolute in the sense that mere violation of them leads to the presumption of damage. – An act which infringes a legal right is a wrongful act. – To constitute a tort or civil injury (1) there must be a wrongful act committed by a person (2) the wrongful act must give rise to legal damage or actual damage and (3) the wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages. – The crucial test of legally wrongful act or omission is its prejudicial effect on the legal right of another.- ‘legal right ‘ defined by Austin as a ‘ faculty ‘ which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answer to a duty lying on a party or parties) other than the party or parties in whom it resides. Rights available against the world at large are numerous. – sub-divided into private rights and public rights. Private   rights   include   all  rights  which belong  to  a  particular  person  to the exclusion of the world at large. These rights are  " (1 ) rights of reputation; (2) rights of bodily safety and freedom; (3) rights  of  property  - - -  these  three  rights  will  be found to embrace all the personal  rights  that  are known to the law " .// To  every right there corresponds an obligation or duty. If the right is legal, so   is   the   obligation.  - - - A  right  in  its  main  aspect  consists  in  doing something, or receiving and accepting something. So an obligation consists in performing some act or in refraining from performing an act. - - - The duty with which the law of tort is concerned is the duty to abstain from wilful injury, to respect the property of  others, and to use due diligence to avoid causing harm to others. // Liability for a tort, therefore, arises  when the wrongful act complained of amounts  either  to  an  infringement  of  a legal private right or a breach or violation of a legal duty. – ‘ Damage ‘ means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act of another. The sum of money awarded by the court is called “ damages” // From the  point of view of presumption of damage, rights are classified into (1) absolute and (2) qualified. When an absolute right is violated the law conclusively presumes damage although the person wronged may have suffered no pecuniary loss whatsoever. The damage so presumed is called legal damage. In case of qualified right, the injury or wrong is not complete unless the violation of the right results in actual or special damage. – The real significance of legal damage is illustrated by two maxim namely injuria sine damno and damnum sine (or absque) injuria. – damnum is meant damage in the substantial sense of money, loss of comfort, service, health or the like. – injuria is meant a tortious act; - Any unauthorised interference , however, trivial, with some absolute right conferred by law on Qualified person, is an injury. – injuria sine damno, i.e. the infringement of an absolute private right without any actual loss or damage,  the person whose right is infringed has a cause of action. Every person has an absolute right to his property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. In this case law presumes damage because certain acts are so likely to result in harm owing to their mischievous tendency that the law prohibits them absolutely – damage need not be proved. Whenever a person has sustained what the law calls an ‘injury’ and in this case he may bring an action without being under the necessity of proving special damage because the injury itself has taken to imply damage. A violation of a legal right committed knowingly gives rise to a cause of action -

      If there is merely a threat of infringement of a legal right without the injury being complete the person whose right has been threatened can bring a suit under the povisions ot the Specific Relief Act for declaration and injunction. damnum sine injuria i.e. actual and substantial loss without infringement of any legal right, no action lies. – When an act is lawful or legally done, without negligence, and in the exercise of a legal right, such damage as comes to another thereby is damage without injury. Actual damage is the gist of action in (2) menace (4) slander (except in four cases) (5) deceipt (6) conspiracy or confederation (8) distress damage feasant (9) negligence (10) nuisance consisting of damages to property. // A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. The essential remedy for tort is an action for damages. // The law of torts is said to be a development of the maxim  ubi jus ibi remedium (there is no wrong without a remedy) – if all the remedies for enforcing a right are gone, the right from practical point of view ceased to exist.

    Judges are cautious in making innovations and they seldom proclaim their creative role. Normally a new principle is judicially accepted to accommodate new ideas of social welfare or public policy only after they have gained their recognition in the society. The general principles behind the tort of negligence is that ‘ you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

     To constitute a tort there must be a wrongful act.. The word “act” in this context is used in a wide sense to include both positive and negatice acts i.e. acts and omissions.- difference – Failure to do something in doing an act is not an omission but a bad way of performing the act. – An omission is failure to do an act as a whole.              // Generally speaking the law does not impose liability for mere omissions. An omission incurs liability when there is a duty to act. – drowning child, stranger and parent – actionable omission

    A voluntary act may be distinguished from the other by dividing into (1) a willed muscular contraction (2) its circumstances and (3) its consequences. An act is wrongful because of the circumstances in which it is performed and the consequences which it produces. For instance, to crook the forefinger with a certain force is the same act whether the trigger of a pistol is next to it or not. It is only the surrounding circumstances of a pistol loaded and cocked, and of a human being in such relation to as to be manifestly likely to be hit that make the act a wrong. – involuntary acts are those where the actor lacks the power to control his actions and involuntary omissions are those where the actor’s lack of power to control his actions renders him unable to do the  act required. An involuntary act does not give rise to any liability. – necessity is a plausible defence.

Even a voluntary act, except in those cases where the liability is strict , is not enough to fasten liability and it has to be accompanied with requisite mental element i.e. malice, intention, negligence or motive to make it an actionable tort assuming that other necessary ingredients of the tort are present.- Malice in the popular sense means spite or ill-will. But in law malice has two distinct meanings : (1) Intentional doing of a wrongful act and (2) Improper motive – Malice in the first sense was described by Bayley J. in the following words : “ Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. If I give a stranger a perfect blow likely to produce death, I do it out of malice, because I do it intentionally and without just cause or excuse. – A wrongful act,  done knowingly and with a view to its injurious consequences, may be called malicious. But such malice derives its essential character from the circumstances that the act is intentionally done and constitutes a violation of the law. – malice in the first sense is also known as  “ malice in law “ which means an act done wrongfully and without reasonable and probable cause and not as in common parlance an act dictated by angry feeling or vindicative motive. “ Malice in law  “ is “ implied malice “ when from the circumstances of the case, the law will infer malice. Malice in second sense is sometimes known as “ express malice “, “ actual malice “ or “ malice in fact “  Malice in this sense i.e. improper motive is for example relevant in the tort of malicious prosecution. Intention, Negligence and Recklessness – Intention is an internal fact, something which passes in the mind and direct evidence of which is not available. - an act is intentional as to its consequences – Recklessness is sometimes called  “ Gross negligence ” Motive– is the ulterior object or purpose of doing an act. – differs from intention in two ways. First, intention relates to the immediate objectives of an act, whereas motive refers to the ulterior objective. Secondly motive refers to some personal benefit or satisfaction which the actor desires whereas intention need not be so related to te actor. – motive is generally irrelevent in tort. – The exceptional cases where motive is relevant as an ingredient are torts of malicious prosecution, malicious abuse of process and malacious falsehood. Motive is also relevant in the torts of defamation, nuisance and conspiracy. In some cases there may be a plurality of purposes and it may become necessary to decide as to what is the predominant purpose. For example if persons combine to protect their own interests and to damage another person they would be liable for the tort of conspiracy if the predominant purpose is to cause damage and damage results; but if the predominent purpose is protection of their legitimate interests they would not be liable even if damage is caused to another person.

The term “ malfeasance “ applies to the commission of an unlawful act. It is generally applicable to those unlawful acts, such as trespass, which are actionable per se and do not require proof of intention or motive. The term “ misfeasance “ is applicable to improper performance of some lawful act for example when there is negligence. The term “ non-feasance “ applies to the omission to  perform some act when there is an obligation to perform it.

right even if act done intentionally and there is damage. – mental element  such as intention, negligence, malice or motive in association with an act or omission which is violative of a right recognised by law plays an important role in creating a liability. Tortious liability here has an element of fault to support it. – sphere of tortious liability known as absolute or more properly strict where the element  of fault is conspicuously absent i.e. liability without fault. – important example of strict liability is the rule in Rylands v Fletcher. More recent example is M.C. Mehta v Union of India

English Law -  Crown was not liable in tort at common law for wrongs committed by its servants in the course of employment not even for wrongs expressly authoised by it. - Crown Proceedings Act 1947 – effect of the Act in other respect, speaking generally, is to abolish the immunity of the Crown in tort and to equate the Crown with a private citizen in matters of tortious liability. The Crown is now vicariously liable for torts committed by its servants in the course of their employment if committed in circumstances which would render a private employer liable.

Indian Law – Crown was not answerable for the torts committed by its servants have never been applied in India.- earlier East India Co. – now Art. 300(1) of Constitution of India

SC in State of Rajasthan v Mst Vidyawati stated “ – there is no justification, in principle or in public interest, that the State should not be held liable vicariously for the tortious act of its servant “  It is well settled now that the State is reponsible for the tortious acts of its employee – AIR 1990 SC 513 p. 516,  SC in Nilbati Behra v State of Orissa, Verma J.  observed “ – Award of compensation  under Art. 32 or 226 – is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not appy , even it may be available as a defence in private law in an action based on torts. “  

The underlying philosophy behind the statutory immunity is that the lesser private right must yield to the greater public interest. The statutory authority extends not merely to the act authorised by the statute but to all inevitable consequences of that act. If no  compensation is given, that affords a reason, though not a conclusive one, for thinking that the intention of the legislatur was, not that the thing should be done at all events, but only that it should be done, if it could be done, without injury to others. But the powers conferred by the legislature should be exercised with judgment and caution so that no unnecessary damage be done. If the damage could have been prevented by the reasonable exercise of the powers conferred, an action can be maintained. It is negligence to carry out the wok in a manner which results in damage unless it can be shown that that and that only was the way in which the duty could be performed.  // Where the terms of a statute are not imperative, but permissive, the fair inference is that the legislatue intended that the discretion, as to the use of general powers thereby conferred, should be exercised in strict conformity with private rights.

 // Harm suffered voluntarily does not constitute a legal injury and is not actionable. This pronciple is embodied in the maxim volenti non fit injuria (where the sufferer is willing no injury is done) A man cannot complain of harm to the chances of which he has exposed himself with knowledge and of his free will.

This expression i.e. necessity if based on the maxim salus populi suprema lex (the welfare of the people is the supreme law), a maxim founded on the implied assent on the part of every member of society, that his own individual wellfare shall, in case of necessity yield to that of the community and that his property, liberty and life, shall under certain circumstances, be placed in jeopardy or even sacrificed for the public good.   //There is authority for the view that even a private person as distinguished from the State may have a defence of necessity. – a balance is to be struck between competing sets of values.

// Every person has a right to defend his own person, property, or possession against an unlawful harm.- // Every person is entitled to protect his property. But he cannot for this purpose do an act which is injurious to his neighbour. – The means adopted to protect one’s property must be reasonable i.e. proportionate to the injuries which they are likely to inflict.

// Nothing is wrong of which a person of ordinary sense and temper would not complain  Courts of justice generally do not take trifling and immaterial matters into account, except under peculiar circumstances, such as the trial of a right, or where personal character is involved. This principle is based on the maxim de minimis non carat lex ( the law does nto take account of trifles ) and is recognised in the Indian Penal Code (s. 95)  The maxim does not apply where there is an injury to a legal right. 

// The common law maxim is actio personalis moritur cum persona ( a personal right of actions dies with the person )

 // It has been said that the damages assessed must answer “ what contemporary society would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing “, and that “ the amount awarded must not be niggardly since the law values  life and limb in a free society in generous scales.” These emotive statements only mean that the sum awarded must be fair and reasonable by accepted legal standards.

 // Where a man has more than one remedy for a tort, he elects to pusue one of them, giving up the other, the other remedies are waived. He cannot pursue them if he fails in the one elected. Waiver is express or implied : express, when the person entitled to anything expressly and in terms gives it up, in which case it nearly resembles release; implied, when the person entitled to anything does or acquiesces in something else which is inconsistent with that to which he is so entitlled. The phrase “ waive the tort “ does not mean that the tort itself is waived;  it is only the right to recover damages for the tort committed, that  is waived. -// - distinction berween election of remedies and election of substantive rights. In a case when the election is between two remedies, it is not complete merely by filing a suit to invoke one remedy until judgement is obtained whereas in a case  where there is an election berween two inconsistent substantive rights, the election may be complete at an earlier stage.

// An act done for another by a person not assuming to act for himself, but for such other person, though without any precedent authority, whatever, becomes the act of the principal, if subsequently ratified by him. In that case the principal is bound by the act, whether it be to his detriment or advantage, and whether it be founded on a tort or a contract to the same extent as by and with all the consequences which follow from the same act done by his previous authorty. Omnio ratihabitio retrorahitur et mandato prorio oequiparatur  (every ratification of an act relates back and thereupon becomes equivalent to a previous request) 

      Three considerations arise before a person can be held liable for a tort by            ratification:

(1)    It must be shown that the person ratifying the act ratified it with full knowledge of its being tortious, or it must be shown that, in ratifying and taking the benefit of the act, he meant to take upon himself, without  inquiry the risk of any irregularity which might have been committed, and to adopt the transaction right or wrong. //The act of ratification must take place at a time, and under circumstances, when the ratifyin party might himself have lawfully done the act which he ratifies.

(2)    Only such act bind a proncipal by subsequent ratification as were done at the time on the proncipal’s behalf. What is done by a person on his own account cannot be effectually adopted by another. If an act be done by a person on behalf of another, it is in general immaterial whether the authority be given prior or subsequent to the act

An act which is illegal and void is incapable of ratification. A ratification (1)    of tort by a principal will not free the agent from his responsibility to third person.

 // Liability of Master – Extent of Liability // The law is settled that a master is vicariously liable for the acts of his servants acting in the course of employment. – 1 -// Liability of Master – Implied Authority // In general, a servant in an emergency has an implied authoty to protect his master’s property. // Vicarious Liability of state // The state is liable vicariously for the torts committed by its servants in the course of employment.

// LIABILITY BY ABETMENT // In actions of wrong, those who abet the tortious acts are equally liable with those who commit the wrong. Aperson who procures the act of another is legally responsible for its consequences  All persons who aid, or counsel, or direct or join in the committal of wrongful act, are joint tort-feasors.

Every man has a right to have his reputation preserved inviolate. The right of reputation is acknowledged as an inherent general right of every person. It is a jus in rem, a right good against all the world. A man's reputation is his property, more valuable than other property.  

Good name is rather to be chosen than great riches – degree of suffering occasioned by loss of character and compare it with that occasioned by loss of property, the amount of former injury far exceeds that of the latter.

Law of defamation like many other branches of law of torts provides for balancing of interests. – competing interest, interest in reputation and freedom of speech.- wrong of defamation protects reputation and defence to the wrong i.e. truth and privilege protect the freedom of speech. Many people in England feel that the present law of defamation gives too much protection to reputation and imposes too great a restriction on the freedom of speech.

The wrong of defamation may be committed by way of either by way of writing or its equivalent , or by way of speech. – term 'libel' is used for former and 'Slander' for the latter.

A learned judge of MP High Court holds that there may be a hybrid type of defamation not falling within the recognised categories of libel and slander. In

that case it was held that the bridegroom and his father in refusing to take the bride to their home after marriage in full gaze of the guests committed the tort of defamation and damage could be awarded for loss of reputation.

Malicious prosecution  is malicious institution against another of unsuccessful criminal, bankruptcy or liquidation proceedings without reasonable or probable cause. This tort balances two competing principles, namely the freedom that every person should have in bringing criminals to justice and the need for restraining false accusation against innocent persons.

The foundation of the action lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose.

In an action for malicious prosecution plaintiff must prove: (1) That he was prosecuted by the defendant, (2) proceedings complained of terminated in favour of plaintiff if from their nature they were capable of so terminating, (3) prosecution was instituted against him without any reasonable or probable cause, (4) prosecution was instituted with a malicious intention, that is, not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact, (5) he has suffered damage to his reputation or to the safety of person, or to the security of his property {several casesI]

An action will not lie for maliciously and without reasonable and probable cause instituting an ordinary suit. – sec 35A of CPC, compensatory costs

To put into force the process of law maliciously and without any reasonable and probable cause is wrongful; and, if thereby another is prejudiced in property or person, there is that conjunction of injury and loss for which an action will lie.

The tort of malicious legal process differs from malicious prosecution in that the legal process taken against a plaintiff is short of prosecution, i.e. when a process is obtained for arrest of the plaintiff or for attachment of his property.

Ingredients to be proved are same as in malicious prosecution except that damage to person or property must be established.

Sec 95 of CPC – summary remedy

Though the limits of the tort of misfeasance in public office have been considered only a few English cases, there is no doubt that the tort is well established.

If the public officer acts with malice, in the sense of an tntent to injure, and damage results the liability arose and the officer can be sued for the tort of misfeasance in public office.

The tort will also be committed, in the absence of malice, if the public officer knew both that what he was doing was invalid and that it will injure the plaintiff.

Tort is capable of being committed by a corporate body e.g. a city council.

Note :- The above is just a brief of the principles of the law of torts. We have an expertise in this field with full legal references. For the first time in the country, we have applied this law in banking and DRT matters. We have the total grasp of the relevant and material facts about banking, industries and finance in light of this law . With such mastery of facts and law, we are able to study the DRT cases and prepare the draft of pleadings for the counter-claim. We need only the documents. Personal discussions are not necessary but if the parties desire, they are welcome for the discussions. In all DRT matters, we can provide consultancy even on phone. We also conduct arguments in important cases in DRT and ADRT.

Video CD containing Interview of Mr. B.S. Malik, the Supreme Court Advocate as well as Our Client available from us:- This video interview will be immensely useful to industrialists, borrowers, guarantors and bank litigants in DRTs. 

Our Client files damage suit of Rs. 1825 Crores against a bank and a financial institution in Chandigarh:- Our Client, an eminent Supreme Court Advocate (practice more than 25 years in Supreme Court) has filed a damage suit of Rs. 1825 Crores in Chandigarh on 13.01.05 against a bank and a financial institution. The said damage suit was drafted by us and it runs in 118 pages having documents of 537 pages. In a video interview lasting more than 30 minutes on 23.01.05, the said Mr. Malik appreciated our legal concepts, our drafting and our knowledge and experience about application of law of torts to banking, industrial sickness, drt, counter-claim, securitisation act and calculations of damages.

The law of Torts is part of the common law,

" It has also  been  held that section 9 of the  Code of Civil  Procedure, which enables a Civil Court  to try all suits of a civil nature , impliedly confers jurisdiction to apply the law of Torts as principles of justice, equity and good conscience. " - Union Carbide Corporation v Union of India, 1988 MPLJ 540.

      As  stated  by  Lord  Scarman: "  The  common  law,   which   in  a  constitutional  context  means  judicially  developed equity, covers everything  which is not  covered by   statutes  - - - the function of the  court is  to  decide the  case  before   it,  even  though the decision may require the extension or adaptation  of  a  principle  or  in  some  cases  the  creation  of a new  law  to  meet  the  justice  of    the  case, - -   " - Macloughlin v. O'Brian, (1982) All ER 298 (310) (H.L) This is a good basis for the application of the law of torts. 

Our  Supreme  Court  in respect of law of torts has  said   - - -  if an occasion arises the       Court can be more progressive than the English Courts in respect of law of torts and can evolve new principle of tort liability not yet accepted by the English  law. In the words of  Bhagwati C.J.  " We have to evolve new principles and lay down new norms which will adequately deal with new problems which arise in a highly industrialised economy. We can not  allow our judicial thinking to be  constricted  by  reference  to  the law as it  prevails in England or for the     matter of that  in  any  foreign country. We are certainly prepared to receive     light  from   whatever   source   it   comes  but  we  have  to  build  our  own     jurisprudence. whatever   source   it   comes  but  we  have  to  build  our  own     jurisprudence. " Hence we are fully justified in applying law of torts in banking and industrial finance.

More recently concerning law of torts, the Supreme Court Judge, Sahai J. observed: " Truly speaking entire law of torts is founded and structured on morality that no one has a right to injure or harm  other  intentionally  or even innocently. Therefore it would be     premitive  to  class  strictly  or close finally the ever-expanding and growing     horizon of tortuous liability.  Even  for social development, orderly growth of     the society and cultural refineness the liberal approach to tortuous liability by courts is  more  conductive." 

//- - --  The  word  ' tort '  is  derived  from  the Latin term tortem to twist and       implies  conduct  which  is  twisted  or  tortious. It now means a breach of some duty independent  of  contract  giving  rise to a civil cause of action and for which compensation is recoverable.  - - -  workable  definition  in  general  terms, a tort  may  be  defined  as a civil wrong independent of contract for which the appropriate remedy is an action for unliquidated damages.

      A tort is a species of civil injury or wrong. - - - no civil injury is to be classed as a tort unless the appropriate remedy for it is an action for damages. It is usual to say that a person is liable in tort irrespective of whether or not a judgment for damages has been given against him. He is liable from the moment he commits the tort.

The Law of Torts governs actions for damages for injuries to certain kinds of rights, like the rights to personal security, property and reputation. ‘ tort ‘  derived from a French word meaning in its etymological sense, a “ twisting out “ and in a popular sense, a crooked act, a transgression from straight or right conduct, a wrong. In this generic sense it (i.e. torts) was introduced into the terminology of English law by the French-speaking lawyers and judges of the courts of the Norman and Angevin Kings of England. Most of the technical terms of English Law are French in origin, - - - usual to speak – ‘ Actions in Contract ‘ and ‘ Actions in Tort ‘ Dr. Winfield has made a critical examination of many possible or current definitions of law of torts and the one suggested by him is as follows; “ Tortious liability arises from the breach of a duty primarily fixed by the law; such duty is towards persons generally and its breach is redressible by an action for unliquidated damages. The early common law was primarily concerned with remedies and not with rights and duties. The damages which a plaintiff has  a right to recover in an action for a tort belong to the category known as ‘ unliquidated damages ‘ This phrase is in law of torts applies to cases where a plaintiff claims not a predetermined and inelastic sum but such an amount as the court in its discretion is at liberty to award, though in his pleading, he may specify a particular amount. The phrase ‘ liquidated damages ‘ refers to a sum which has been predetermined by contract or statute.- -- Damages are usually intended to be a pecuniary compensation for the injury; they are then called substantial damages. They may be awarded with a view to  punish the defendant ; they are then called exemplary, punitive or vindictive damages.

     Tort, as we have seen, aims principally at the prevention or compensation of harm whereas the “ core “ of contract is the idea of forcing certain promises. - - - mere failure to  act will not be actionable in tort. - - - legally binding - - - damages can not be claimed in tort for a “ loss of expectation “ as opposed to  “ out of pocket “ losses, or, as it is sometimes expressed, damages in contract put the plaintiff in the position he would have been in had the contract been performed, whereas damages in tort put him in the position he would have been in had the tort not been committed. - - - plaintiff having the benefit of whichever is more favourable to him on the particular facts.  - - primary duty – for breach of which tortious liability is imposed. The breach of such a duty gives rise to a remedial duty, i.e. a duty to make redress, and this is always owed to a specific person or persons whatever the source of the liability.

2.     The  person committing  a  tort or wrong is  called  a tort-feasor or wrong doer, and his misdoing is a tortious act. The principal   aim   of  the   law  of  torts   is   compensation   of  victims   or  their dependants.  Grant  of  exemplary  damages  in certain cases will show that deterrent of wrong-doers is also another aim of the law of torts. // distinction between a Contract and a Tort  --- A  contract  is  founded upon consent : a tort  is  inflicted   against  or  without  consent,  A  contract necessitates privity between the parties to it : in tort no privity is needed. A tort is a violation of a right in rem i.e. of a right vested in some determinate person, either personally or as a member of the community, and available against the world at large; whereas a breach of contract is an infringement of a right in personam, i.e. of a right available only against some determinate person or body, and in which the community at large has no concern. The distinction between the two i.e. law of torts and law of contracts lies in the nature of the duty that is violated. In the case of a tort the duty is one imposed by the law and is owed to the community at large. In the case of contract, the duty is fixed by the will and consent of the parties, and it is owed to a definite person or persons.- - - Secondly, in a breach of contract, the motive for the breach is immaterial; in a tort, it is often taken into consideration. Thirdly, in a breach of contract, damages are only a compensation. In an action for tort to the property, they are generally the same. But where the injury is to the person, character, or feelings, and the facts disclose improper motive or conduct such as fraud, malice, violence, cruelty, or the like which aggravate the plaintiff’s injury. He may be awarded aggravated damages in the law of torts. Exemplary damages to punish the defendant and to deter him in future can also be awarded in certain cases in tort but rarely in  contract. Another distinction is that the law of torts is aimed at allocation or prevention of losses whereas the law of contract aims to see that promises made under a contract are performed. Same act may amount to a tort and a breach of contract. e.g. father employing  a surgeon to treat his injury.  There may be concurrent contractual and tortious duties owed to the same plaintiff who has a choice of proceeding either in tort or contract except when he must rely on a specific term of the contract as distinct from any duty of reasonable care implicit in the particular relationship brought about by the contract in  which case he has to depend exclusively on his contractual claim. Lord Bridge in the context of an auditor observed: In advising the client who employs him the professional man owes a duty to exercise that standard of skill and care appropriate to his professional status and will be liable both in contract and in tort for all losses which his client may suffer by reason of any breach of that duty.

The law of torts is fashioned as “ an instrument for making people adhere to standards of reasonable behaviour and respect the rights and interests of one another. – violation of protected interests of a person – remedy by  giving him compensation – By  “ interest “ here is meant “ a claim, want or desire of a human being or group of human beings which the  human being or group of human beings seek to satisfy, and of which therefore , the ordering of human relations in civilized society must take account.  “ – A protected interest gives rise to a legal right which in turn gives rise to a corresponding legal duty. Some legal rights are absolute in the sense that mere violation of them leads to the presumption of damage. – An act which infringes a legal right is a wrongful act. – To constitute a tort or civil injury (1) there must be a wrongful act committed by a person (2) the wrongful act must give rise to legal damage or actual damage and (3) the wrongful act must be of such a nature as to give rise to a legal remedy in the form of an action for damages. – The crucial test of legally wrongful act or omission is its prejudicial effect on the legal right of another.- ‘legal right ‘ defined by Austin as a ‘ faculty ‘ which resides in a determinate party or parties by virtue of a given law, and which avails against a party (or parties or answer to a duty lying on a party or parties) other than the party or parties in whom it resides. Rights available against the world at large are numerous. – sub-divided into private rights and public rights. Private   rights   include   all  rights  which belong  to  a  particular  person  to the exclusion of the world at large. These rights are  " (1 ) rights of reputation; (2) rights of bodily safety and freedom; (3) rights  of  property  - - -  these  three  rights  will  be found to embrace all the personal  rights  that  are known to the law " .// To  every right there corresponds an obligation or duty. If the right is legal, so   is   the   obligation.  - - - A  right  in  its  main  aspect  consists  in  doing something, or receiving and accepting something. So an obligation consists in performing some act or in refraining from performing an act. - - - The duty with which the law of tort is concerned is the duty to abstain from wilful injury, to respect the property of  others, and to use due diligence to avoid causing harm to others. // Liability for a tort, therefore, arises  when the wrongful act complained of amounts  either  to  an  infringement  of  a legal private right or a breach or violation of a legal duty. – ‘ Damage ‘ means the harm or loss suffered or presumed to be suffered by a person as a result of some wrongful act of another. The sum of money awarded by the court is called “ damages” // From the  point of view of presumption of damage, rights are classified into (1) absolute and (2) qualified. When an absolute right is violated the law conclusively presumes damage although the person wronged may have suffered no pecuniary loss whatsoever. The damage so presumed is called legal damage. In case of qualified right, the injury or wrong is not complete unless the violation of the right results in actual or special damage. – The real significance of legal damage is illustrated by two maxim namely injuria sine damno and damnum sine (or absque) injuria. – damnum is meant damage in the substantial sense of money, loss of comfort, service, health or the like. – injuria is meant a tortious act; - Any unauthorised interference , however, trivial, with some absolute right conferred by law on Qualified person, is an injury. – injuria sine damno, i.e. the infringement of an absolute private right without any actual loss or damage,  the person whose right is infringed has a cause of action. Every person has an absolute right to his property, to the immunity of his person, and to his liberty, and an infringement of this right is actionable per se. In this case law presumes damage because certain acts are so likely to result in harm owing to their mischievous tendency that the law prohibits them absolutely – damage need not be proved. Whenever a person has sustained what the law calls an ‘injury’ and in this case he may bring an action without being under the necessity of proving special damage because the injury itself has taken to imply damage. A violation of a legal right committed knowingly gives rise to a cause of action -

      If there is merely a threat of infringement of a legal right without the injury being complete the person whose right has been threatened can bring a suit under the povisions ot the Specific Relief Act for declaration and injunction. damnum sine injuria i.e. actual and substantial loss without infringement of any legal right, no action lies. – When an act is lawful or legally done, without negligence, and in the exercise of a legal right, such damage as comes to another thereby is damage without injury. Actual damage is the gist of action in (2) menace (4) slander (except in four cases) (5) deceipt (6) conspiracy or confederation (8) distress damage feasant (9) negligence (10) nuisance consisting of damages to property. // A tort is a civil injury, but all civil injuries are not torts. The wrongful act must come under the category of wrongs for which the remedy is a civil action for damages. The essential remedy for tort is an action for damages. // The law of torts is said to be a development of the maxim  ubi jus ibi remedium (there is no wrong without a remedy) – if all the remedies for enforcing a right are gone, the right from practical point of view ceased to exist.

    Judges are cautious in making innovations and they seldom proclaim their creative role. Normally a new principle is judicially accepted to accommodate new ideas of social welfare or public policy only after they have gained their recognition in the society. The general principles behind the tort of negligence is that ‘ you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

     To constitute a tort there must be a wrongful act.. The word “act” in this context is used in a wide sense to include both positive and negatice acts i.e. acts and omissions.- difference – Failure to do something in doing an act is not an omission but a bad way of performing the act. – An omission is failure to do an act as a whole.              // Generally speaking the law does not impose liability for mere omissions. An omission incurs liability when there is a duty to act. – drowning child, stranger and parent – actionable omission

    A voluntary act may be distinguished from the other by dividing into (1) a willed muscular contraction (2) its circumstances and (3) its consequences. An act is wrongful because of the circumstances in which it is performed and the consequences which it produces. For instance, to crook the forefinger with a certain force is the same act whether the trigger of a pistol is next to it or not. It is only the surrounding circumstances of a pistol loaded and cocked, and of a human being in such relation to as to be manifestly likely to be hit that make the act a wrong. – involuntary acts are those where the actor lacks the power to control his actions and involuntary omissions are those where the actor’s lack of power to control his actions renders him unable to do the  act required. An involuntary act does not give rise to any liability. – necessity is a plausible defence.

Even a voluntary act, except in those cases where the liability is strict , is not enough to fasten liability and it has to be accompanied with requisite mental element i.e. malice, intention, negligence or motive to make it an actionable tort assuming that other necessary ingredients of the tort are present.- Malice in the popular sense means spite or ill-will. But in law malice has two distinct meanings : (1) Intentional doing of a wrongful act and (2) Improper motive – Malice in the first sense was described by Bayley J. in the following words : “ Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. If I give a stranger a perfect blow likely to produce death, I do it out of malice, because I do it intentionally and without just cause or excuse. – A wrongful act,  done knowingly and with a view to its injurious consequences, may be called malicious. But such malice derives its essential character from the circumstances that the act is intentionally done and constitutes a violation of the law. – malice in the first sense is also known as  “ malice in law “ which means an act done wrongfully and without reasonable and probable cause and not as in common parlance an act dictated by angry feeling or vindicative motive. “ Malice in law  “ is “ implied malice “ when from the circumstances of the case, the law will infer malice. Malice in second sense is sometimes known as “ express malice “, “ actual malice “ or “ malice in fact “  Malice in this sense i.e. improper motive is for example relevant in the tort of malicious prosecution. Intention, Negligence and Recklessness – Intention is an internal fact, something which passes in the mind and direct evidence of which is not available. - an act is intentional as to its consequences – Recklessness is sometimes called  “ Gross negligence ” Motive– is the ulterior object or purpose of doing an act. – differs from intention in two ways. First, intention relates to the immediate objectives of an act, whereas motive refers to the ulterior objective. Secondly motive refers to some personal benefit or satisfaction which the actor desires whereas intention need not be so related to te actor. – motive is generally irrelevent in tort. – The exceptional cases where motive is relevant as an ingredient are torts of malicious prosecution, malicious abuse of process and malacious falsehood. Motive is also relevant in the torts of defamation, nuisance and conspiracy. In some cases there may be a plurality of purposes and it may become necessary to decide as to what is the predominant purpose. For example if persons combine to protect their own interests and to damage another person they would be liable for the tort of conspiracy if the predominant purpose is to cause damage and damage results; but if the predominent purpose is protection of their legitimate interests they would not be liable even if damage is caused to another person.

The term “ malfeasance “ applies to the commission of an unlawful act. It is generally applicable to those unlawful acts, such as trespass, which are actionable per se and do not require proof of intention or motive. The term “ misfeasance “ is applicable to improper performance of some lawful act for example when there is negligence. The term “ non-feasance “ applies to the omission to  perform some act when there is an obligation to perform it.

right even if act done intentionally and there is damage. – mental element  such as intention, negligence, malice or motive in association with an act or omission which is violative of a right recognised by law plays an important role in creating a liability. Tortious liability here has an element of fault to support it. – sphere of tortious liability known as absolute or more properly strict where the element  of fault is conspicuously absent i.e. liability without fault. – important example of strict liability is the rule in Rylands v Fletcher. More recent example is M.C. Mehta v Union of India

English Law -  Crown was not liable in tort at common law for wrongs committed by its servants in the course of employment not even for wrongs expressly authoised by it. - Crown Proceedings Act 1947 – effect of the Act in other respect, speaking generally, is to abolish the immunity of the Crown in tort and to equate the Crown with a private citizen in matters of tortious liability. The Crown is now vicariously liable for torts committed by its servants in the course of their employment if committed in circumstances which would render a private employer liable.

Indian Law – Crown was not answerable for the torts committed by its servants have never been applied in India.- earlier East India Co. – now Art. 300(1) of Constitution of India

SC in State of Rajasthan v Mst Vidyawati stated “ – there is no justification, in principle or in public interest, that the State should not be held liable vicariously for the tortious act of its servant “  It is well settled now that the State is reponsible for the tortious acts of its employee – AIR 1990 SC 513 p. 516,  SC in Nilbati Behra v State of Orissa, Verma J.  observed “ – Award of compensation  under Art. 32 or 226 – is a remedy available in public law based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not appy , even it may be available as a defence in private law in an action based on torts. “  

The underlying philosophy behind the statutory immunity is that the lesser private right must yield to the greater public interest. The statutory authority extends not merely to the act authorised by the statute but to all inevitable consequences of that act. If no  compensation is given, that affords a reason, though not a conclusive one, for thinking that the intention of the legislatur was, not that the thing should be done at all events, but only that it should be done, if it could be done, without injury to others. But the powers conferred by the legislature should be exercised with judgment and caution so that no unnecessary damage be done. If the damage could have been prevented by the reasonable exercise of the powers conferred, an action can be maintained. It is negligence to carry out the wok in a manner which results in damage unless it can be shown that that and that only was the way in which the duty could be performed.  // Where the terms of a statute are not imperative, but permissive, the fair inference is that the legislatue intended that the discretion, as to the use of general powers thereby conferred, should be exercised in strict conformity with private rights.

 // Harm suffered voluntarily does not constitute a legal injury and is not actionable. This pronciple is embodied in the maxim volenti non fit injuria (where the sufferer is willing no injury is done) A man cannot complain of harm to the chances of which he has exposed himself with knowledge and of his free will.

This expression i.e. necessity if based on the maxim salus populi suprema lex (the welfare of the people is the supreme law), a maxim founded on the implied assent on the part of every member of society, that his own individual wellfare shall, in case of necessity yield to that of the community and that his property, liberty and life, shall under certain circumstances, be placed in jeopardy or even sacrificed for the public good.   //There is authority for the view that even a private person as distinguished from the State may have a defence of necessity. – a balance is to be struck between competing sets of values.

// Every person has a right to defend his own person, property, or possession against an unlawful harm.- // Every person is entitled to protect his property. But he cannot for this purpose do an act which is injurious to his neighbour. – The means adopted to protect one’s property must be reasonable i.e. proportionate to the injuries which they are likely to inflict.

// Nothing is wrong of which a person of ordinary sense and temper would not complain  Courts of justice generally do not take trifling and immaterial matters into account, except under peculiar circumstances, such as the trial of a right, or where personal character is involved. This principle is based on the maxim de minimis non carat lex ( the law does nto take account of trifles ) and is recognised in the Indian Penal Code (s. 95)  The maxim does not apply where there is an injury to a legal right. 

// The common law maxim is actio personalis moritur cum persona ( a personal right of actions dies with the person )

 // It has been said that the damages assessed must answer “ what contemporary society would allow the wrongdoer to hold up his head among his neighbours and say with their approval that he has done the fair thing “, and that “ the amount awarded must not be niggardly since the law values  life and limb in a free society in generous scales.” These emotive statements only mean that the sum awarded must be fair and reasonable by accepted legal standards.

 // Where a man has more than one remedy for a tort, he elects to pusue one of them, giving up the other, the other remedies are waived. He cannot pursue them if he fails in the one elected. Waiver is express or implied : express, when the person entitled to anything expressly and in terms gives it up, in which case it nearly resembles release; implied, when the person entitled to anything does or acquiesces in something else which is inconsistent with that to which he is so entitlled. The phrase “ waive the tort “ does not mean that the tort itself is waived;  it is only the right to recover damages for the tort committed, that  is waived. -// - distinction berween election of remedies and election of substantive rights. In a case when the election is between two remedies, it is not complete merely by filing a suit to invoke one remedy until judgement is obtained whereas in a case  where there is an election berween two inconsistent substantive rights, the election may be complete at an earlier stage.

// An act done for another by a person not assuming to act for himself, but for such other person, though without any precedent authority, whatever, becomes the act of the principal, if subsequently ratified by him. In that case the principal is bound by the act, whether it be to his detriment or advantage, and whether it be founded on a tort or a contract to the same extent as by and with all the consequences which follow from the same act done by his previous authorty. Omnio ratihabitio retrorahitur et mandato prorio oequiparatur  (every ratification of an act relates back and thereupon becomes equivalent to a previous request) 

      Three considerations arise before a person can be held liable for a tort by            ratification:

(1)    It must be shown that the person ratifying the act ratified it with full knowledge of its being tortious, or it must be shown that, in ratifying and taking the benefit of the act, he meant to take upon himself, without  inquiry the risk of any irregularity which might have been committed, and to adopt the transaction right or wrong. //The act of ratification must take place at a time, and under circumstances, when the ratifyin party might himself have lawfully done the act which he ratifies.

(2)    Only such act bind a proncipal by subsequent ratification as were done at the time on the proncipal’s behalf. What is done by a person on his own account cannot be effectually adopted by another. If an act be done by a person on behalf of another, it is in general immaterial whether the authority be given prior or subsequent to the act

An act which is illegal and void is incapable of ratification. A ratification (1)    of tort by a principal will not free the agent from his responsibility to third person.

 // Liability of Master – Extent of Liability // The law is settled that a master is vicariously liable for the acts of his servants acting in the course of employment. – 1 -// Liability of Master – Implied Authority // In general, a servant in an emergency has an implied authoty to protect his master’s property. // Vicarious Liability of state // The state is liable vicariously for the torts committed by its servants in the course of employment.

// LIABILITY BY ABETMENT // In actions of wrong, those who abet the tortious acts are equally liable with those who commit the wrong. Aperson who procures the act of another is legally responsible for its consequences  All persons who aid, or counsel, or direct or join in the committal of wrongful act, are joint tort-feasors.

Every man has a right to have his reputation preserved inviolate. The right of reputation is acknowledged as an inherent general right of every person. It is a jus in rem, a right good against all the world. A man's reputation is his property, more valuable than other property.  

Good name is rather to be chosen than great riches – degree of suffering occasioned by loss of character and compare it with that occasioned by loss of property, the amount of former injury far exceeds that of the latter.

Law of defamation like many other branches of law of torts provides for balancing of interests. – competing interest, interest in reputation and freedom of speech.- wrong of defamation protects reputation and defence to the wrong i.e. truth and privilege protect the freedom of speech. Many people in England feel that the present law of defamation gives too much protection to reputation and imposes too great a restriction on the freedom of speech.

The wrong of defamation may be committed by way of either by way of writing or its equivalent , or by way of speech. – term 'libel' is used for former and 'Slander' for the latter.

A learned judge of MP High Court holds that there may be a hybrid type of defamation not falling within the recognised categories of libel and slander. In

that case it was held that the bridegroom and his father in refusing to take the bride to their home after marriage in full gaze of the guests committed the tort of defamation and damage could be awarded for loss of reputation.

Malicious prosecution  is malicious institution against another of unsuccessful criminal, bankruptcy or liquidation proceedings without reasonable or probable cause. This tort balances two competing principles, namely the freedom that every person should have in bringing criminals to justice and the need for restraining false accusation against innocent persons.

The foundation of the action lies in abuse of the process of the Court by wrongfully setting the law in motion and it is designed to discourage the perversion of the machinery of justice for an improper purpose.

In an action for malicious prosecution plaintiff must prove: (1) That he was prosecuted by the defendant, (2) proceedings complained of terminated in favour of plaintiff if from their nature they were capable of so terminating, (3) prosecution was instituted against him without any reasonable or probable cause, (4) prosecution was instituted with a malicious intention, that is, not with the mere intention of carrying the law into effect, but with an intention which was wrongful in point of fact, (5) he has suffered damage to his reputation or to the safety of person, or to the security of his property {several casesI]

An action will not lie for maliciously and without reasonable and probable cause instituting an ordinary suit. – sec 35A of CPC, compensatory costs

To put into force the process of law maliciously and without any reasonable and probable cause is wrongful; and, if thereby another is prejudiced in property or person, there is that conjunction of injury and loss for which an action will lie.

The tort of malicious legal process differs from malicious prosecution in that the legal process taken against a plaintiff is short of prosecution, i.e. when a process is obtained for arrest of the plaintiff or for attachment of his property.

Ingredients to be proved are same as in malicious prosecution except that damage to person or property must be established.

Sec 95 of CPC – summary remedy

Though the limits of the tort of misfeasance in public office have been considered only a few English cases, there is no doubt that the tort is well established.

If the public officer acts with malice, in the sense of an tntent to injure, and damage results the liability arose and the officer can be sued for the tort of misfeasance in public office.

The tort will also be committed, in the absence of malice, if the public officer knew both that what he was doing was invalid and that it will injure the plaintiff.

Tort is capable of being committed by a corporate body e.g. a city council.

Note :- The above is just a brief of the principles of the law of torts. We have an expertise in this field with full legal references. For the first time in the country, we have applied this law in banking and DRT matters. We have the total grasp of the relevant and material facts about banking, industries and finance in light of this law . With such mastery of facts and law, we are able to study the DRT cases and prepare the draft of pleadings for the counter-claim. We need only the documents. Personal discussions are not necessary but if the parties desire, they are welcome for the discussions. In all DRT matters, we can provide consultancy even on phone. We also conduct arguments in important cases in DRT and ADRT.

Video CD containing Interview of Mr. B.S. Malik, the Supreme Court Advocate as well as Our Client available from us:- This video interview will be immensely useful to industrialists, borrowers, guarantors and bank litigants in DRTs. 

Our Client files damage suit of Rs. 1825 Crores against a bank and a financial institution in Chandigarh:- Our Client, an eminent Supreme Court Advocate (practice more than 25 years in Supreme Court) has filed a damage suit of Rs. 1825 Crores in Chandigarh on 13.01.05 against a bank and a financial institution. The said damage suit was drafted by us and it runs in 118 pages having documents of 537 pages. In a video interview lasting more than 30 minutes on 23.01.05, the said Mr. Malik appreciated our legal concepts, our drafting and our knowledge and experience about application of law of torts to banking, industrial sickness, drt, counter-claim, securitisation act and calculations of damages.

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