Introduction:

The Calcutta High Court has reaffirmed the importance of protecting free speech while dealing with applications for interim injunctions in defamation proceedings, holding that courts must exercise exceptional caution before restraining allegedly defamatory statements at the interlocutory stage. In Anil Kaushik and Another v. Surabh Khemani, FMAT No. 220 of 2026, a Division Bench comprising Justice Sabyasachi Bhattacharyya and Justice Sandip Kumar De set aside an interim order of the City Civil Court at Calcutta which had restrained the appellants from circulating emails containing allegations concerning the management of a company.

The dispute arose from communications sent by the appellants concerning the affairs and management of CyberCorp Limited and Sundyne Technologies Private Limited. The emails contained allegations against the plaintiff concerning alleged legal violations, including alleged misappropriation of proprietary software source codes and confidential technical material. The plaintiff approached the Trial Court alleging that these communications were defamatory and sought protection against their further circulation.

The City Civil Court granted an interim injunction restraining the defendants from sending emails to third parties who were not directly involved with the concerned business and which raised what the Trial Court described as illegal allegations against the plaintiff relating to the management of the business during his tenure. At the same time, the Trial Court clarified that the injunction would not prevent the defendants from making genuine complaints concerning illegal activities before competent statutory authorities.

The appellants challenged this order before the Calcutta High Court. The central question before the Division Bench was not whether the allegations made in the emails were ultimately true or defamatory. Rather, the Court had to determine whether the Trial Court had correctly applied the legal principles governing an interim injunction in a defamation action when the truth or falsity of the allegations itself remained uncertain.

The High Court answered the question in the negative. It emphasised that defamation cases occupy a special position when interim relief is sought because an injunction restraining speech before a final determination can have serious consequences for freedom of expression. The Court relied upon the well-established principle originating in Bonnard v. Perryman and subsequently followed in Fraser v. Evans, commonly referred to as the “Bonnard Principle”.

The principle recognises that where a defendant raises a potentially valid defence of justification by truth, an interlocutory injunction should ordinarily not be granted unless the Court is satisfied that the defence is certain to fail at trial. The existence of an arguable defence of truth therefore assumes considerable significance at the interim stage.

The Division Bench observed that the ordinary principles governing interim injunctions—namely, the existence of a prima facie case, balance of convenience and the likelihood of irreparable injury—continue to apply. However, in a defamation action, these considerations operate alongside the additional safeguard created by the Bonnard Principle.

The High Court found that the Trial Court had itself acknowledged that it could not determine at the interlocutory stage whether the allegations made in the emails were genuine or truthful. Despite this uncertainty, it proceeded to restrain the appellants from making “illegal allegations”. According to the Division Bench, this approach was internally contradictory. If the Court was unable to determine the truthfulness or legality of the allegations, it could not simultaneously conclude that the defence of justification was certain to fail.

The Court also found fault with the breadth and vagueness of the injunction. The expressions “third parties” and persons “not directly involved” with the business were not sufficiently defined. The pleadings did not clearly identify the persons who allegedly fell outside the scope of those directly connected with the business. Consequently, the injunction left the parties to determine its boundaries according to their own perception.

The decision therefore presents an important reaffirmation of the balance between protection of reputation and protection of free expression. While reputation is a legally protected interest, the Court stressed that a person cannot ordinarily secure a prior restraint on speech merely by asserting that the statements are defamatory when the truth of those statements remains a matter for adjudication at trial.

Arguments of the Parties:

The appellants, Anil Kaushik and another, challenged the interim injunction primarily on the ground that the Trial Court had failed to apply the special principles governing injunctions in defamation proceedings. Their case was that the impugned emails were not merely gratuitous attacks upon the plaintiff but communications made in the context of alleged legal and corporate irregularities concerning the management and affairs of the concerned companies.

The appellants relied upon the substance and context of the communications to contend that the allegations could not be treated as conclusively defamatory at the interlocutory stage. The emails concerned alleged violations of corporate and criminal law and referred to legal notices and available legal remedies. The first email dated January 16, 2026, expressly stated that it was being issued without prejudice to the rights, remedies and proceedings available in law and equity. A subsequent email dated January 31, 2026 referred to and attached an actual legal notice issued on the same date, substantially reiterating its contents.

According to the appellants, these circumstances demonstrated that the communications formed part of a broader legal dispute rather than being isolated statements published merely to damage the plaintiff’s reputation. They argued that the truthfulness of the allegations, and consequently the availability of the defence of justification, could not properly be determined without evidence at trial.

The appellants also pointed out that the allegations related to specific corporate conduct and alleged legal infractions. Among the allegations were claims concerning the alleged misappropriation of proprietary software source codes and confidential technical material. They contended that the strong language used in the emails had to be considered in the context in which it was employed and could not automatically be treated as defamatory merely because the allegations were serious or strongly worded.

Another significant aspect of the appellants’ case concerned the Bonnard Principle. Their contention was that once the Trial Court itself recognised that it was unable, at the interlocutory stage, to determine whether the allegations were genuine or true, the necessary threshold for an injunction in a defamation action had not been satisfied.

The appellants essentially argued that the Trial Court had applied the ordinary tests for interim relief without giving effect to the additional protection applicable in defamation cases. Under the Bonnard Principle, they contended, the Court should ordinarily refrain from restraining publication unless it was satisfied that the defence of truth was bound to fail at trial. Since that conclusion could not possibly be reached on the material before the Trial Court, the injunction was legally unsustainable.

The appellants further challenged the wording of the injunction itself. The Trial Court had prohibited communications to “third parties” who were not “directly involved” with the business. The appellants argued that these expressions were uncertain and did not clearly identify whom they were prohibited from contacting. Such an order, according to their case, could have a sweeping effect and expose them to allegations of contempt based on an unclear understanding of the order.

The respondent, Surabh Khemani, on the other hand, approached the matter from the standpoint of protection of reputation and prevention of continuing injury. The plaintiff’s case before the Trial Court was that the communications contained allegations concerning his conduct in connection with the management of the business and that circulation of such allegations to persons unconnected with the business could damage his reputation.

The respondent sought to sustain the interim protection granted by the City Civil Court on the premise that allegations of illegality should not be freely circulated among persons who had no direct involvement with the company’s affairs. The argument was essentially that while legitimate complaints before statutory authorities could remain unaffected, private circulation of serious allegations to unrelated third parties could cause reputational harm that might not be capable of being adequately remedied after trial.

The Trial Court had, in fact, attempted to draw such a distinction. While restraining the appellants from sending the impugned communications to certain third parties, it expressly clarified that the defendants would remain free to make genuine complaints concerning illegal activities before competent statutory authorities.

The respondent therefore had an interest in maintaining the limited restraint as a means of preventing what was alleged to be unnecessary and potentially defamatory dissemination of accusations, while preserving the appellants’ right to approach lawful forums.

However, the High Court’s task was not simply to determine whether the respondent had a legitimate interest in protecting his reputation. It was required to assess whether the legal standard for an interim injunction in a defamation action had been met. The competing submissions thus brought into focus the tension between two important interests: the protection of reputation on one hand and freedom of expression on the other.

The Division Bench ultimately found that the respondent’s concern regarding reputational injury could not, by itself, justify an interlocutory restraint when the truth or falsity of the allegations remained unresolved and the appellants had raised a defence based upon the alleged illegality of the plaintiff’s conduct.

Court’s Judgment:

The Calcutta High Court allowed the appeal and set aside the City Civil Court’s order dated April 4, 2026 granting the interim injunction. In doing so, the Division Bench provided a detailed reiteration of the special principles that govern interim injunctions in defamation proceedings.

At the heart of the judgment was the Bonnard Principle. The Court referred to Bonnard v. Perryman and Fraser v. Evans, observing that the principle had repeatedly been recognised and followed by Indian courts. Its significance lies in the recognition that a judicial order restraining allegedly defamatory speech before the truth or falsity of the statement has been determined can itself cause serious interference with freedom of expression.

The Division Bench explained that the ordinary threefold test for an interim injunction—prima facie case, balance of convenience and irreparable injury—is not sufficient by itself in a defamation action. The Bonnard Principle must also be applied.

The Court stated that in a defamation suit, an interim injunction ordinarily ought not to be granted unless the Court is satisfied that the defence of justification by truth available to the defendant is certain to fail at trial. The requirement is deliberately stringent because the effect of an interim injunction is effectively to prevent publication before the merits of the dispute have been conclusively adjudicated.

This principle reflects an important distinction between defamation litigation and ordinary civil disputes. In many civil cases, an interlocutory injunction is designed to preserve the status quo until the rights of the parties can be finally determined. In a defamation case, however, restraining speech before trial can itself amount to a substantial interference with freedom of expression. If the statement subsequently turns out to be true, the defendant would have been prevented from communicating a matter that was legally capable of being communicated.

The Court therefore stressed that until an alleged libel is shown to be untrue, it cannot conclusively be said that a legal right of the plaintiff has been infringed. The mere possibility that the statement may ultimately be found defamatory is insufficient to justify an interim restraint where the defence of truth remains genuinely available.

The Division Bench found the Trial Court’s reasoning particularly problematic because of the contradiction in its own findings. The Trial Court had expressly observed that at the interlocutory stage it was not possible to determine whether the allegations contained in the emails were genuine. It had recognised that their truthfulness would have to be examined during the trial.

Having reached that conclusion, however, the Trial Court nevertheless restrained the appellants from making “illegal allegations”.

The High Court held that these two conclusions could not logically coexist. If the Trial Court was uncertain whether the allegations were true or false, it could not have reached the further conclusion that the defence of justification was certain to fail. The uncertainty itself demonstrated why an injunction should not have been granted under the Bonnard Principle.

The High Court observed that there was therefore no basis for the Trial Court to conclude that the allegations were certain to fail at trial. The failure to apply this heightened threshold constituted an error of law.

The Court then examined the actual communications that had formed the foundation of the injunction. The emails dated January 16 and January 31, 2026 related to alleged legal infractions concerning CyberCorp Limited and Sundyne Technologies Private Limited. The first email referred to legal notices and expressly stated that it was being issued without prejudice to the rights and remedies available in law and equity. The subsequent email referred to and attached an actual legal notice issued on the same date and substantially reiterated its contents.

The Bench acknowledged that the emails contained strong expressions and serious allegations, including allegations concerning the alleged misappropriation of proprietary software source codes and confidential technical material. Nevertheless, the Court considered it important to examine those allegations in their legal and factual context.

The allegations were connected with claims of violations of corporate and criminal law. Their truthfulness and the legality of the plaintiff’s conduct were matters capable of determination by competent legal forums. The seriousness of an allegation, by itself, could not eliminate the requirement of applying the Bonnard Principle.

The existence of ongoing proceedings before the National Company Law Tribunal concerning allegations of oppression and mismanagement was also relevant to the broader context. The High Court did not itself decide the merits of those allegations. Instead, it recognised that the dispute concerning the company’s affairs was already subject to adjudicatory proceedings and that the competing claims were therefore matters capable of determination through legal processes.

This distinction was crucial. The Division Bench did not hold that the allegations made by the appellants were true. Nor did it hold that the plaintiff had no remedy for defamation. Rather, it held that the truthfulness of the allegations could not be conclusively determined at the interlocutory stage and that the absence of such determination prevented the Court from satisfying the stringent threshold required for an interim restraint.

The judgment therefore preserves the distinction between interim adjudication and final adjudication. An interlocutory court must avoid effectively deciding the merits of a dispute when the evidence required for a final determination is yet to be tested. This is particularly important where the consequence of interim relief is to silence speech.

The Court also placed considerable emphasis on the constitutional value of free speech. It observed that protection of free expression constitutes a strong reason for courts to act “most cautiously and warily” when considering interim injunctions in cases involving libel or defamation.

This does not mean that defamatory statements enjoy absolute protection. Reputation remains a legitimate legal interest, and a person who has been defamed may pursue appropriate remedies. The judgment instead establishes that the remedy of an interlocutory injunction must be exercised with exceptional restraint because of its potential impact on expression.

The Court’s reasoning also addressed the language of the injunction. The Trial Court had restrained the defendants from sending emails to “third parties” who were not “directly involved” with the business.

The Division Bench found these expressions insufficiently precise. The plaint and injunction application did not clearly identify the capacities of persons allegedly unconnected with CyberCorp Limited. Nor did they categorically specify which recipients of the emails would fall within the prohibited category.

As a result, the injunction effectively required the parties themselves to decide who qualified as a “third party” and who was sufficiently “directly involved” with the business. Such uncertainty is particularly problematic in an injunction order because violation of an injunction can have serious legal consequences.

The High Court therefore considered the restraint to be effectively blanket in nature and insufficiently precise. An injunction must clearly define the conduct that is prohibited. Parties should not be left to speculate about the scope of a judicial command.

The Court’s treatment of the vagueness issue reinforced its broader concern that interim restraints on speech must be narrowly and carefully framed. Where an order potentially affects communications with third parties, ambiguity can have a chilling effect extending beyond the immediate dispute.

The High Court ultimately concluded that the Trial Court had misconstrued the legal parameters applicable to interim injunctions in defamation proceedings. The ordinary tests of prima facie case, balance of convenience and irreparable injury had to be considered together with the Bonnard Principle. The latter could not be ignored simply because the plaintiff alleged reputational injury.

The Division Bench reiterated the underlying proposition that until it becomes clear that an alleged libel is untrue, it cannot necessarily be said that a legal right has been infringed. Where the defendant has raised a defence based on truth and the Court cannot determine at the interlocutory stage that the defence is certain to fail, the extraordinary remedy of an interim restraint should ordinarily be withheld.

Accordingly, the appeal in FMAT No. 220 of 2026 was allowed and the City Civil Court’s order dated April 4, 2026 was set aside.

At the same time, the High Court carefully limited the scope of its own observations. It clarified that its findings were tentative and confined to the determination of the appeal against the temporary injunction. They were not intended to influence the Trial Court while deciding the main defamation suit.

This qualification is significant. The High Court did not finally pronounce upon whether the allegations contained in the emails were true, false, defamatory or justified. Those questions remain open for determination in the substantive proceedings. The decision was concerned with whether the strinent legal threshold for interim restraint had been sat