Madras High Court
Reckitt Benckiser (India) ... vs Itc Limited on 15 December, 2021
O.S.A.(CAD) Nos.132 to 134 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.12.2021
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
O.S.A. (CAD) Nos.132 to 134 of 2021
Reckitt Benckiser (India) Private Limited
having its registered office at
Plot No.48, Institutional Area
Sector 32, Haryana - 122 001. .. Appellant
Vs
ITC Limited
rep. by its Constituted Attorney, P.Ramkumar
ITC Centre, 4th Floor
760, Anna Salai
Chennai - 600 002. .. Respondent
Prayer: Appeals under Section 13 of the Commercial Courts Act, 2015
against the order dated 25.11.2021 passed in Application No.3839 of
2021 in O.A.No.554 of 2021 in C.S.(Comm. Div.) No.55 of 2021;
Application No.3841 of 2021 in O.A.No.556 of 2021 in C.S.(Comm.
Div.) No.55 of 2021; and Application No.3840 of 2021 in O.A.No.555
of 2021 in C.S.(Comm. Div.) No.55 of 2021.
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O.S.A.(CAD) Nos.132 to 134 of 2021
For the Appellant : Mr.Satish Parasaran
Senior Counsel
for Mr.R.Saravanakumar
For the Respondent : Mr.C.Manishankar
Senior Counsel
for Mr.Arun C.Mohan
COMMON JUDGMENT
(Delivered by the Hon'ble Acting Chief Justice)
By these appeals a challenge is made to the order dated
25.11.2021, whereby costs of Rs.1 lakh was imposed on the
appellant, with a direction for payment on or before 8.12.2021.
2. Learned Senior Counsel for the appellant submits that
pursuant to the suit preferred by the plaintiff/non-appellant, an
order of injunction was passed on 6.10.2021. The appellant had
taken immediate steps in compliance of the said order, yet
applications were filed by the plaintiff/non-appellant invoking the
jurisdiction under Order XXXIX Rule 2A of the Code of Civil
Procedure, 1908 (for brevity, "the CPC") alleging disobedience and
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O.S.A.(CAD) Nos.132 to 134 of 2021
breach of the order dated 6.10.2021. The learned Single Judge,
after considering the facts of the case, found no deliberate or
intentional flouting of the order so as to detain the appellant in the
civil prison as provided under Order XXXIX Rule 2A of the CPC. The
learned Single Judge yet imposed costs of Rs.1 lakh on the
appellant, though not provided under Order XXXIX Rule 2A of the
CPC.
3. Learned Senior Counsel for the appellant further submits
that the appellant had given proper explanation for its conduct. It is
stated that immediately after the injunction order was passed by the
learned Single Judge, the appellant issued instructions to all
concerned not to telecast the advertisement under restrain. Despite
said communication, three television channels telecast the
advertisement on different dates and on knowing about it, emails
were sent requesting them not to telecast the advertisement under
restrain and thereupon even those three television channels did not
telecast the advertisement. The television channels had submitted
their explanation to the effect that the telecast was due to technical
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O.S.A.(CAD) Nos.132 to 134 of 2021
error. Thus, the court below recorded its opinion that the action of
the appellant herein was not deliberate or intentional to flout the
order of injunction dated 6.10.2021. Once the finding to this effect
was recorded, there was no occasion for the court to proceed further
and impose costs. It is more so when Order XXXIX Rule 2A does not
provide for imposition of costs. Thus, the impugned order has been
passed well beyond the power conferred under Order XXXIX Rule 2A
and, therefore, deserves to be set aside.
4. Learned Senior Counsel for the plaintiff/non-appellant
submits that despite grant of an order of injunction restraining the
appellant, its management, members, affiliates, directors, servants,
officers, employees, representatives, agents and all other persons
claiming under them or acting in concert with them or on their
behalf or acting on their instructions from telecasting, broadcasting,
publishing, disseminating or otherwise communicating to the public
in any manner the advertisement, the appellant did not take
immediate steps to ensure compliance of the injunction order and,
therefore, the plaintiff/non-appellant filed applications under Order
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O.S.A.(CAD) Nos.132 to 134 of 2021
XXXIX Rule 2A of the CPC alleging violation of the injunction order,
as the advertisement was telecast from time to time in three
different television channels at the instance of the appellant. It is
proved by the emails sent by the appellant. Thus, the learned
Single Judge was right in holding that there was slackness on the
part of the appellant in implementing the restraint order and was
justified in imposition of the costs of Rs.1 lakh. The prayer is made
to maintain the order and thereby dismiss the appeals.
5. We have considered the rival submissions of the parties and
perused the records.
6. The operative portion of the order dated 6.10.2021 granting
interim injunction in favour of the plaintiff/non-appellant is quoted
hereunder for ready reference:
"38. Hence, interim injunction granted restraining the
respondent, their management, members, affiliates,
directors, servants, officers, employees,
representatives, agents and all other persons
claiming under them or acting in concert with them
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O.S.A.(CAD) Nos.132 to 134 of 2021
or on their behalf or acting on their instructions from
telecasting, broadcasting, publishing, disseminating
or otherwise communicating to the public in any
manner, the impugned advertisement carrying the
storyboard or any part thereof extracted in paragraph
No.19 of this order. The respondent/defendant is
hereby directed to withdraw/stop forthwith from
displaying the impugned advertisement through any
mode, in any manner and in any language."
7. The injunction order was passed against the appellant
company, namely, Reckitt Benckiser (India) Private Limited. It is
not in dispute that despite the injunction order the advertisement
was telecast in three television channels named in the impugned
order. The learned Single Judge, after taking note of the fact that
the appellant immediately requested the three television channels
not to telecast the advertisement and even asked for their response,
opined that the act of the appellant was not intentional or deliberate
to flout the order of injunction dated 6.10.2021. The court below
also took note of the response of the television channels that the
advertisement was telecast on few days due to technical error. The
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O.S.A.(CAD) Nos.132 to 134 of 2021
finding to the above effect has been recorded in paragraph 16 of the
impugned order. Paragraph 17 of the order further records the
unconditional apology tendered by the appellant. Thereupon, the
court imposed costs of Rs.1 lakh, though a prayer to that effect was
not made in the applications and it was beyond the scope of the
power conferred under Order XXXIX Rule 2A of the CPC. For ready
reference Order XXXIX Rule 2A of the CPC is quoted hereunder:
"Order XXXIX - Temporary Injunctions and
Interlocutory Orders
Rules 1 and 2 ....
Rule 2A. Consequence of disobedience or
breach of injunction.—
(1) In the case of disobedience of any
injunction granted or other order made under
rule 1 or rule 2 or breach of any of the terms
on which the injunction was granted or the
order made, the Court granting the injunction
or making the order, or any Court to which
the suit or proceeding is transferred, may
order the property of the person guilty of
such disobedience or breach to be attached,
and may also order such person to be
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O.S.A.(CAD) Nos.132 to 134 of 2021
detained in the civil prison for a term not
exceeding three months, unless in the
meantime the Court directs his release.
(2) No attachment made under this rule shall
remain in force for more than one year, at
the end of which time, if the disobedience or
breach continues, the property attached may
be sold and out of the proceeds, the Court
may award such compensation as it thinks fit
to the injured party and shall pay the
balance, if any, to the party entitled thereto."
8. The provision quoted above provides for detention in the
civil prison for a term not exceeding three months for disobedience
or breach of the order in a given case referred under Order XXXIX
Rule 2A of the CPC. The provision aforesaid does not provide for
imposition of costs and that too in a case where the disobedience or
breach was not found to be intentional or deliberate.
9. In view of the above, we are of the firm opinion that the
order impugned imposing costs on the appellant is beyond the
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O.S.A.(CAD) Nos.132 to 134 of 2021
purview of Order XXXIX Rule 2A of the CPC and ignoring the prayer
made in the applications. The costs could not have been imposed
once the act of the appellant herein was not found to be intentional
or deliberate violation of the order passed by the court on 6.10.2021
and even otherwise being not provided under Order XXXIX Rule 2A
of the CPC.
For the foregoing reasons, these appeals are allowed and the
order impugned is set aside. No costs. Consequently,
C.M.P.Nos.20403, 20405 and 20406 of 2021 are closed.
(M.N.B., ACJ.) (P.D.A., J.)
15.12.2021
Index : Yes/No
sasi
To:
The Sub Assistant Registrar
Original Side
High Court, Madras.
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O.S.A.(CAD) Nos.132 to 134 of 2021
M.N.BHANDARI, ACJ
AND
P.D.AUDIKESAVALU,J.
(sasi)
O.S.A. (CAD) Nos.132 to 134 of 2021
15.12.2021
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