Grand Chemical Works And Ors. vs Nirmala Dyechem And Ors.
2003 Latest Caselaw 403 Del

JUDGMENT

Manmohan Sarin, J.

1. This is an application moved by defendant No. 2 for clarification of the order dated 14.2.2003, passed in IA. 1865/2003 to the effect, that the injunction granted does not apply to the advertisement of the applicant/defendant appearing at pages 65 to 69.

2. Plaintiffs have filed a suit for permanent and mandatory injunction to restrain the defendants from displaying or taking out advertisement in the media, telecasting or broadcasting the advertisements, which are defamatory or disparaging of the plaintiff's product. Plaintiff Nos. 1 and 2 are the manufacturer of "phenyl". During the course of arguments, as recorded in the order dated 14.2.2003, plaintiff had taken the Court through the advertisements, annexures 3 and 4, which were being broadcast and telecasted. It was urged that the pictorial and audio text showed that the defendant apart from eulogising the qualities of their product "Domex" were undermining and disparaging the qualities of the plaintiffs' product "Phenyl". This was done by showing in the advertisement a phenyl bottle with comments. It was brought out that "phenyl" is incapable of achieving the results which are achieved by the "Domex" i.e., the defendant's product. Two jars, one using "phenyl" and the other using "Domex" were shown, with resultant effect.

3. From a perusal of the order dated 14.2.2003, as passed, it is clear that the main plank of plaintiffs' case was the disparaging manner in which the advertisement dealt with plaintiffs' product.

4. The grievance of defendant No. 3 in the present application is that the restraint order should not apply to the advertisement, which appears at pages 65 to 69. This is an advertisement of approximately 45 seconds, where no reference is made to the plaintiffs' product "Phenyl".Mr. Dave, learned senior counsel for defendant No.3 has urged before me that the plaintiffs had very cleverly inserted this advertisement between the two advertisements, dealing with the product of the plaintiff. In the advertisement in question, neither the name of the plaintiffs' product nor any title is shown. It has no disparaging comments with regard to the plaintiffs' product. Hence, there was no justification for a restraint being put with regard to this advertisement. Learned counsel also explains that the use of the expression "Sirf" in the advertisement was in the context of use of the defendant's product as a disinfectant cleaner for removal of "Daag Dabhas" and "Kitanuos" i.e. Germicidal. In other words, the reference was to use of the product as a cleaning agent as well as a germicidal. I find considerable merit in this submission, as advertisement in question far from disparaging does not even refer to the product of the plaintiff.

5. Learned counsel for the plaintiff opposes the application. He firstly sought time to file reply. The advance copy of this application had been served as far back as 28.3.2003 as also the notice of the application had also been received on 4.4.2003. In any case, learned counsel for the plaintiff appears to be fully ready with the matter and has addressed the Court in opposition to the application. He firstly submits that defendant No. 3 has no locus standi to agitate this not being the manufacturer. Besides the application itself under Section 151 CPC would not be maintainable. He submits that the case of the plaintiff is based not only on the defendant's advertisements, which are disparaging but also misleading. Hence, certain paras of the advertisements would come within the ambit of misleading.

6. As far as the question of locus is concerned, defendant No. 3 is a distributor, who has vital interest in the sale of the product. Defendant No. 3 is responsible for the advertisement and the sale campaign. Besides, Mr. Raman Kapur, counsel appearing for defendant Nos. 1, 2, 4 and 5 submits that he supports the defendant No. 3 in this application. There is also no merit in the contention that the application with the nomenclature under Section 151 CPC is not maintainable. It is well settled that in substance rather than form is to be seen. As it meets the ingredients of Order XXXIX Rule 4 CPC, it can be so treated as under the said provision.

7. Having given my anxious consideration and specially keeping in mind the first order dated 14.2.2003 that was passed, I am of the view that the advertisement in question, appearing at pages 65 to 69 cannot be said to be one which disparages or undermines the product of the plaintiffs. There is no reference in the said advertisement to the plaintiff's product. Plaintiffs' product is neither named nor so depicted in the pictorial manner. In this view of the matter, it is clarified that the restraint order passed would not apply to the advertisement appearing at pages 65 to 69.

Application is allowed in the above terms.