Frankfinn Aviation Services Pvt. ... vs Akash Gupta
2009 Latest Caselaw 5359 Del

.*         HIGH COURT OF DELHI : NEW DELHI

+                       CS (OS) No.1070/2005

Frankfinn Aviation Services Pvt. Ltd.                ......Plaintiff
                     Through : Mr. Ajit Nair, Adv. with Mr. Dheeraj, Adv.

                       Versus

Akash Gupta                                             .....Defendant
                       Through: None

                       Judgment reserved on:    10th December , 2009
%                      Judgment decided on :    22nd December, 2009

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                 No

2. To be referred to Reporter or not?                              Yes

3. Whether the judgment should be reported                         Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The plaintiff filed the aforesaid suit against the defendant on

the basis of advertisement published by the defendant in the newspaper

HT City of Hindustan times (Delhi edition) dated 3rd August, 2005 in

which the defendant has allegedly made a false, misleading,

disparaging and defamatory statement against the plaintiff which

harms/injure the plaintiff‟s reputation and business interest as well as

mislead the public especially the existing and prospective students and

their parents.

2. The plaintiff is a company incorporated under the

Companies Act, 1956 having its registered office at 721, Suneja Tower-

II, Dist. Centre, Janak Puri, New Delhi-110058. The suit has been filed

by Mr. Arun Kumar, Manager (Operations) of the plaintiff company

who is authorized to sign and institute the present suit on behalf of the

plaintiff company by board resolution passed in his favour on 26th May,

2005 which is exhibited as Ex.PW-1/1.

3. The plaintiff provides training in aviation, hospitality and

travel industry. It is running a chain of institutes under the name and

style of "Frankfinn Institute of Airhostess Training" and has 43 centres

all over the country constituting the largest network of Airhostess

training centres in the country.

4. It is stated that the plaintiff company trains the students about

the detailed functioning of an aircraft and has leased a real Airbus A-

300 Aircraft for the said purpose. The training includes all the aspects

of in flight services including door handling, use of emergency oxygen

masks, using life jackets, escapes chutes, ditching, serving passenger

besides familiarizing the students with a cockpit and cargo sections of

the Aircraft. BBC World, Financial Times and other international news

channels in UK and USA have given a wide spread coverage to the

institute of the plaintiff. The Limca Books of Records, 2005 has also

acclaimed about the achievements made by the institute of the plaintiff.

5. The plaintiff submits that its institute is very popular

amongst the students aspiring to join the aviation, hospitality and travel

industry and is endorsed by well-known celebrity, Ms. Soha Ali Khan

Pataudi who is its Brand Ambassador. The plaintiff published several

advertisements in leading newspapers across the country stating that 70

of its students have been selected by SpiceJet Airline.

6. The defendant is also engaged in the same trade i.e.

providing training in the aviation and hospitality industry and is running

its centre under the name and style of "AHA" (Air Hostess Academy).

The alleged defamatory statements made by the defendant in the issue of

HT City of Hindustan Times (Delhi Edition) dated 3 rd August, 2005 are

reproduced hereunder :

                                      ANY                 IN-FINN-SHIN
                                      INSTITUTE
In-Flight and Airport exposure        They provide training in a
                                      stationed aircraft, which is useless,
                                      as for cabin crew to have real
                                      hands-on training, the plane must
                                      take off.
Brand Ambassador                      They have to resort to using
                                      celebrities, as they have no real
                                      successes to speak of.
Placements                            You will not disagree that the only
                                      criteria to choose any educational
                                      institute      is its placement
                                      percentage and not numbers. All
                                      tall claims are hollow unless
                                      supported        by       placement
                                      percentages (Eg. : If 70 students
                                      are placed, the question arises, out
                                      of how many students - 6000 or
                                      7000?)

7. The plaintiff stated that no other institute in the country

including that of the defendant has real aircraft to provide training

similar to that of the plaintiff. The plaintiff contended that the

defendant‟s claim to provide in-flight exposure to its students is

misleading, in as much as, the students are taken on a flight just like

any passenger and are not provided any practical training.

8. The plaintiff claims that the defendant by publishing false

and defamatory advertisement is trying to injure the reputation and

goodwill of the plaintiff by adopting unfair and unethical trade practice

and is trying to mislead the public at large. The impugned advertisement

has injured the trade interest of the plaintiff and is likely to cause

damage/grave injury to the plaintiff. On account of the damage caused

to the reputation and goodwill on account of the impugned

advertisement, the plaintiff has quantified damages at an approximate

amount of Rs.1 crore.

9. The defendant filed the written statement contending that the

plaintiff has not come before this court with clean hands as it has

suppressed relevant and material facts from the court. It is stated that

there is another suit bearing No.464/2004 which has been filed by the

defendant against the plaintiff for a decree of permanent injunction,

restraining the plaintiff from taking out and/or printing any

advertisement with any reference to the Air Hostess Academy (AHA) in

any form or manner by any newspapers, publications, banners and hand

bills. There is also other suit CS (OS) No.1127/2003 which was filed

by the defendant against the NGO set up by the plaintiff SAUVEUR for

restraining it from taking out and publishing any defamatory

statements against the defendant‟s institute AHA.

10. The defendant submits that in both the abovesaid suits, the

plaintiff was restrained from taking out and publishing any defamatory

advertisement in the newspapers using the name of the firm of the

defendant.

11. The defendant further submits that its institute Air Hostess

Academy (in short „AHA‟) is a reputed institute and a pioneer in the

field of imparting training to students/personnel in the field of

Aviation and Hospitality Industry. It is the first and only Academy of its

kind in the Aviation and Hospitality Industry to have ISO9001

certification.

12. The plaintiff is the competitor of AHA and is running a

training institute which also imparts training to students/personnel in the

field of aviation industry.

13. It is contended that despite the restraint orders against the

Plaintiff in the abovmentioned suits, the plaintiff in contempt of this

court‟s order continued publishing defamatory and derogatory reference

of the defendant for which a CCP No.89/2005 has also been filed by the

defendant.

14. The defendant denied of making any statement as allegedly

stated in the plaint in the advertisement which are defamatory and/or

have been published with a view to harm and/or injure the plaintiff‟s

reputation and business interests and/or to mislead the public, especially

the existing and prospective students and their parents.

15. The defendant admitted of publishing an advertisement in

HT City of Hindustan Times (Delhi Edition) on 3rd August, 2005 but

claimed that it only reflects the message that the institute of the

defendant trains its students in real flying conditions and has tried to

convey this fact in its advertisement.

16. The defendant also denied that it has made any defamatory

and malicious remarks against any one, in particular the alleged Brand

Ambassador of the plaintiff. It submits that it has only highlighted the

fact that it does not need to use high celebrities to sell its services and

that it was proud of its record and that its students were its Brand

Ambassador. The defendant contended that by the impugned

advertisement it has only compared the basis of its services with those

of the other institutes which make tall and false claims in their

advertisements.

17. The plaintiff in its replication denied that the NGO

SAUVEUR has been set up by the plaintiff or has any connection with

it. It is submitted that by orders dated 4 th May, 2004 and 24th May, 2004

in CS (OS) No.464/2004, no restraint orders were passed against the

plaintiff. In fact, the plaintiff was granted leave to publish its

advertisement as per specimen shown and approved by this court.

18. On the basis of the pleadings of the parties, the following

issues were framed by the court on 24th March, 2006 :

"1. Whether the plaintiff is entitled for a decree of injunction as prayed ? OPP

2. Whether the plaintiff is entitled for a decree for recovery of Rs.1 crore ? OPP

3. Whether the plaintiff is entitled for interest, if so, on what amount, for what period and at what rate ? OPP

4. Whether the advertisement dated 3rd August, 2005 Annexure P1, is defamatory, misleading and disparaging, if so, to what effect ? OPP

5. Relief."

19. The plaintiff in support of its case examined three witnesses

namely Mr. Arun Kumar, Mr. Rajesh Arora and Mr. Manish Singhal by

filing their evidence by way of affidavit.

20. Mr. Arun Kumar, PW-1 (Manager-Operations of the Plaintiff

company) filed his evidence by way of affidavit exhibit PW 1/A. He

has reaffirmed statements made in the plaint in his affidavit and

quantified the damages at an approximate value of Rs.1 crore on

account of loss to the plaintiff company.

21. PW-2 Mr. Rajesh Arora s/o Sh. D.N. Arora R/o 8/49 Ramesh

Nagar, New Delhi and PW-3 Mr. Manish Singhal, s/o late Sh. M.K.

Singhal, r/o C 502 Prince Apartments, I.P. Extension, New Delhi-92

who are franchisee of the plaintiff company also in their affidavit

supported the case of the plaintiff.

22. To deal with the rival contentions of the parties, I shall first

deal with issue No.4 which relates to the question whether the

advertisement dated 3rd August, 2005 published in the HT City of

Hindustan Times is defamatory, misleading and disparaging to the

plaintiff‟s institute.

23. There are various decisions of this Court wherein the test of

comparative advertisement on the law of disparagement has been

discussed and proved holding that a promoter of a product is not

entitled to defame the goods of another manufacturer in the garb of

comparative advertising. It was held in Reckit & Colman of India

Ltd. Vs. Kiwi T.T.K. Ltd.; 1996 PTC (16) that :

"I) A tradesman is entitled to declare his goods to be best in the world, even though the declaration is untrue.

II) He can also say that my goods are better than his competitors‟ goods even though such statement is untrue.

III) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors‟ he can even compare the advantages of his goods over the goods of others.

IV) He, however, cannot while saying his goods are better than his competitors‟, say that his competitors‟ goods are bad. If he says so, he really slanders the goods off his competitors. In other words he defames his competitors and their goods, which is not permissible.

V) If there is no defamation to the goods or to the manufacturer of such goods no action lies, but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the court is also competent to grant an order of injunction restraining repetition of such defamation."

24. In view of settled law that though a manufacturer/tradesman

is entitled to declare that his goods are best in the world and may also

compare his goods with his competitors elaborating the advantages of

his goods over the goods of others, he cannot defame or disparage the

goods of another manufacturer/trader and if he does so, the aggrieved

trader would be entitled to seek relief including the relief of damages for

defamation and a prohibitory injunction.

25. It cannot be denied that the defendant by the impugned

advertisement has, while comparing his services, to some extent has

declared his competitor‟s services i.e. the plaintiff, in bad light. The

defendant has used the words "useless" for training provided in a

stationed aircraft while showing the benefit of its in- flight and airport

exposure. The plaintiff trains the student in stationed aircraft and has

also leased a real Airbus A-300 for the said purpose, therefore, the

defendant by using the words „useless‟ for providing training in

stationed aircraft has clearly defamed the plaintiff‟s services.

26. Similarly, the defendant has used the words „no real

successes‟ while comparing the training provided by other competitior‟s

and referring to brand ambassadors endorsed by them. This also

defames plaintiff as the institute of the plaintiff is endorsed by Ms. Soha

Ali Khan who is its brand ambassador and a well known celebrity.

Although, the defendant has not mentioned the name of the plaintiff

directly, however, the way the said advertisement is given, makes it

clear that the same relates to the plaintiff and no one else. Therefore, the

defendant cannot wash away his hands by saying that it does pertain to

the plaintiff. Similar point has been decided in the case of Karamchand

Appliances (P) Ltd. Vs. Sh. Adhikari Brothers & Ors. 2005(31)PTC

1.

27. In view of settled law, I am of the considered opinion that the

advertisement dated 3rd August, 2005 by the defendant is defamatory

and disparaging to the plaintiff‟s services to the extent when it contains

the words „useless‟ and „ no real successes‟. The defendant can not in

any way be allowed to use the same while comparing/stating the

advantages of its services and disparaging the services of the plaintiff.

The issue No.4 is decided accordingly.

28. In the above circumstances, the plaintiff, is entitled for the

decree of injunction. The defendant is permanently restrained from

using the words „useless‟ and „ no real successes‟ and/or any other

words in its advertisement which in any way disparages or defames the

products of the plaintiff or injure the goodwill and reputation of the

plaintiff.

29. As the defendant is permanently restrained from using any

statement in the advertisement which are defamatory and/or harm the

plaintiff‟s reputation and goodwill, the prayers of the plaintiff with

regard to recovery of Rs 1 crore and interest for quantified damages is

rejected being not proved.

30. The suit is accordingly disposed of. The plaintiff is entitled

to costs. Decree sheet be drawn accordingly.

MANMOHAN SINGH, J DECEMBER 22, 2009 nn