Delhi High Court
Bennett, Coleman & Co Ltd. vs Play Shack School on 6 October, 2016
$~15.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) NO. 416/2016 & IA No.10111/2016 (under Order XXXIX
Rules 1&2 CPC).
BENNETT, COLEMAN & CO LTD. ..... Plaintiff
Through: Mr. Rahul Malhotra, Adv.
versus
PLAY SHACK SCHOOL .... Defendant
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 06.10.2016
1. This suit had come up first on 22nd August, 2016 when inter alia the
following order was passed:-
"CS(OS) 416/2016 & IA No.10111/2016 (u/O 39 R-1&2
CPC)
3. The plaintiff, a publisher of newspapers, has instituted
this suit to restrain the defendant, a play school, from inserting
its handbills / pamphlets by way of its advertisements in the
folds of the newspaper of the plaintiff distributed in the
catchment area of the plaintiff. (sic for defendant)
4. It is the case of the plaintiff that the defendant under
some arrangement with the vendor/s delivering the newspaper
of the plaintiff to the homes of ultimate customers of the
plaintiff, encloses its advertisement in the form of handbills /
pamphlets in the folds of the newspaper of the plaintiff thereby
taking advantage of the distribution network of the plaintiff
and the goodwill of the plaintiff.
5. Having entertained doubts as to the right if any of the
plaintiff to so restrain the defendant, I have enquired from the
senior counsel for the plaintiff:
i) Whether not the claim if any of the plaintiff
in this regard would be against the
distributor of its newspapers and who in turn
according to the senior counsel for the
plaintiff engages the vendor for ultimate
delivery to the customers;
ii) Whether the transaction between the plaintiff
and its distributors is of an agency or of sale
inasmuch as it is felt that if it is of sale, then
once the newspaper has been sold the
plaintiff cannot have any control over the use
thereof particularly when it is simply being
used as a wrap for something else. Instances
have been given to the senior counsel for the
plaintiff of the use of the newspaper for
selling food items or cleaning window panes
etc.;
iii) Whether there is any clause in the agreement
of the plaintiff with its distributors of
exclusivity i.e. of not distributing any other
material along with newspaper of plaintiff.
Prima facie it appears that there is none as
the same vendor is found to distribute
newspapers of different publishers; and
iv) How can the insertion of such handbills /
pamphlets hurt the plaintiff; no literate
person can possibly, prima facie, be led into
believing that the pamphlet / handbill placed
in the folds of newspaper of plaintiff has the
support of the plaintiff or is by way of
advertisement of plaintiff. Though plaintiff is
also known to, as supplement(s) to its
newspaper distributes some material but
always with sufficient indication of the same
originating from the plaintiff. I may in this
regard also notice that on most days my copy
of 'Times of India' is delivered in the fold of
'Indian Express' newspaper. The same does
not make 'Times of India', 'Indian Express'
or vice versa.
6. The plaintiff to also place before this Court the
agreement/s entered into with its distributors.
7. List on 6th September, 2016 as requested."
2. The matter, on 6th September, 2016 was adjourned to 22nd September,
2016 when the counsel for the plaintiff was heard further and order on the
aspect of maintainability of the suit reserved. The plaintiff chose not to
produce before this Court the agreement with its distributors.
3. The plaintiff has now filed IA No.12570/2016 for withdrawal of the
suit.
4. The suit is dismissed as withdrawn.
No costs.
RAJIV SAHAI ENDLAW, J
OCTOBER 06, 2016
'pp' ..
