Cadbury (India) Ltd. vs Dr. M.C. Saxena
1999 Latest Caselaw 1238 Del

ORDER

Manmohan Sarin, J.

1. The plaintiff has filed the present suit claiming damages of Rs. 2 crores for defamation against defendants 1 and 2. Defendant No. 1 is stated to be the Director of defendant No. 2, the latter claiming to be a research laboratory. Perpetual injunction is sought to restrain the defendants from further writing or publishing or re-publishing, articles, news items con-taining allegations or defamatory statements similar to those set out in para 5 to 15 of the plaint relating primarily to the Nickel content or use of Nickel in the chocolates manufactured by the plaintiff.

2. The plaintiff has averred that the defamatory imputations attributed to defendants were published in a series of articles and write-ups which have been produced alongwith the plaint as exhibits B to H. This suit was transferred from the High Court of Bombay to this Court vide orders of the Supreme Court pursuant to the orders passed on 24.11.1995. The Defendant entered appearance on 1.5.1996 and sought time to file the written state-ment. Written statement was not filed. Defendants were accordingly proceed-ed ex-parte on 12.5.1998. Defendants thereupon, moved an application, I.A. No. 5001/99 under Order 9, Rule 7 for setting aside the ex-parte order. The application was allowed subject to payment of costs of Rs.7,500/- to the Delhi Legal Services Authority. Time was further granted to file Written Statement within four weeks from 10.9.1999. Instead of filing the written statement, the defendants moved an application, I.A. No. 10675/99 seeking further information and better particulars.

3. The said application was dismissed by this Court on 11.11.1999 with costs of Rs. 3000. Despite repeated opportunities granted to file the written statement, it has not been filed. Neither have the costs imposed for setting aside the ex-parte proceedings or imposed while dismissing the application under Order 11, Rule 12 CPC been paid.

4. When the matter came up on 11.11.1999, in the interest of justice, it was again directed to be renotified on 15.12.1999. For non-appearance of the defendant on 15.12.1999, no adverse order was again passed and the matter was directed to be renotified today i.e. 20.12.1999. Today, Ms. Sushmita Lal, proxy counsel for defendant appears. She is unable to say anything with regard to filing of the written statement i.e. whether the written statement is ready or not? She simply seeks adjournment on the ground of non-availability of the counsel.

In these facts and circumstances, I am not persuaded to further adjournment. This is a matter which deserves to be proceeded under Order VIII, Rule 10 CPC.

5. The plaintiff has filed claim for damages of Rs. 2 crores on account of the defamatory imputations published. Learned counsel for the plaintiff, on instructions, states that the plaintiff is not really interested in recovering the said amount of damages and would be satisfied, if its posi-tion is vindicated and the defendant is prohibited by a decree of permanent injunction from writing or publishing further defamatory articles in rela-tion to the alleged Nickel content in the chocolates manufactured by the plaintiff. Plaintiff, accordingly, confines his claim for award for damages to a nominal sum of Rs.100.

6. The plaint and the documents attached thereto, have been perused. The substance of the plaintiff's claim is that the plaintiff is a reputed manufacturer of the well-known CADBURY CHOCOLATES and the defamatory impu-tations contained in exhibit B to H which have been published, are per se defamatory. The plaintiff contends that these allegations are without any foundation or research. The defendant has failed despite repeated opportunities to come forward with any plea of defense either by way of justifica-tion or fair comment.

7. Having perused the plaint and the articles in question, I am satisfied that the plaintiff has made out a good ground for the grant of a perpetual injunction restraining the defendants from publishing or re-publishing or making any oral or written statement or giving any press interviews or press conferences containing any allegations or defamatory statements based on Exhibits B to H confined to and regarding the Nickel content or use of Nickel in the chocolates manufactured or marketed by the plaintiff.

8. While granting a prior restraint on defamatory imputations being published by defendants with regard to the Nickel content of chocolates manufactured by the plaintiff, the Bench is conscious that prior restraint which would impinge upon the right to freedom of. expression is normally not granted. However, in case of per se defamatory imputations being repeatedly published, mala fide or with ulterior motives or for which no justification or defense is offered, an injunction should follow to protect the fair reputation of the person concerned.

9. Accordingly, I decree the suit under Order VIII, Rule 10 CPC. However, as the plaintiff has confined its claim to a nominal sum of Rs. 100/- I award Rs. 100/- as nominal damages against the defendants and restrain them from, in any manner writing or publishing or re-publishing or making any oral or written statements or giving any press interviews or press conferences containing any allegation or defamatory statements in relation to the Nickel content or use of Nickel in the Chocolates manufactured or marketed by the plaintiff.