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TMI Blog1997 (12) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Commission. By virtue of the impugned order, certain directions in the nature of temporary injunction have been granted in favour of the respondents- complainants and against the appellant. It is to be noted further that the Commission, which directed a panel of experts to give its opinion on the issue involved, made it clear that the order that was being passed was a 'temporary interim order' and a final order on the Injunction Application would be passed later after receiving the opinion of the experts. The Commission said: "If the parties are agreeable, the order passed at present may be treated as a purely temporary interim order subject to modification, variation or vacation after perusing the opinion of the aforesaid panel of experts." [Emphasis supplied] 3. We shall state the brief facts and the conclusions of the Commission insofar as they are material for the purposes of this appeal. 4. The 1st respondent, Colgate-Palmolive (India) Ltd. manufactures 'Colgate Dental Cream'. The appellant too has various brands of toothpaste but we are concerned here with the 'New Pepsodent' toothpaste introduced by the appellant recently into the market. The appellant had given a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presentation as stated in section 36A(viii) and giving false or misleading facts 'disparaging' the goods of the appellant as stated in section 36A(x). 6. The appellant, while defending itself, contended that there was no 'unfair trade practice' practiced by it under clause (viii) or (x) of section 36A and that no case for grant of temporary injunction under section 12A was made out. The appellant contended that the complainants were bound to prove that the facts depicted in the advertisement as to 102 per cent superiority of Pepsodent were false. Unless such falsity was proved in the I.A., no temporary injunction could be granted. 7. The Commission in its order dated 5/6-11-1997 after referring to the facts and contentions, held that the objection based on sections 36B and 10 as to maintainability of the complaint was not tenable because the Commission was empowered, even to act upon its own knowledge or information for purpose of inquiry under the Act. Further, the 2nd complainant, who was a consumer, could rely upon sections 10 and 36B. It found that inasmuch as the overall market share of Colgate was shown to be 59 per cent in the second quarter of the year 1997 and the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proach and should be decided by independent experts and it would be hazardous for the Commission to venture even a prima facie opinion. It then referred to the voluntary suggestion of the appellant for appointing a panel of experts, as follows: "In fact, the respondent has also volunteered in its reply that this may be done by a team of experts. That may be done at the stage of final hearing. If the parties agree, it can be done at the interim stages also, provided each side furnishes the names of experts with their consent to give opinion, if so desired by the Commission, within the reasonably specified time- limit......" [Emphasis supplied] 9. Thus, by adverting to the suggestion of the appellant, and relying on the same, the Commission felt that the claims of superiority of the appellant and the respondent could be decided by an expert body, which could submit its report in 4 or 5 months. For that purpose, each side could suggest the name of an expert and the Commission would nominate a third expert. Parties were to give the names in a fortnight. The Commission then stated that this was a purely temporary interim order. It said that this was : "a purely temporary interim orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commission has granted a temporary injunction which is of an 'interim' nature and the Commission is yet to pass further orders in the same injunction applica-tion, after receipt of the opinion of the panel of experts. It is also to be noted that the Commission proposed the appointment of an expert panel for two reasons. The first reason was that both sides were relying upon laboratory tests or opinions of their own experts. These opinions were conflicting and the Commission had no machinery of its own to verify the claims of the parties unless a body of experts could give its opinion to the Commission. The second reason, according to the Commission, was that the appellant itself volunteered and suggested that such a panel of experts could be appointed. 15. There was some argument before us by the learned counsel for the appellant that appellant had not agreed for the panel as stated in the order. In this behalf, we are satisfied that what the Commission had stated in its order is correct and is clearly borne out by what the appellant had stated in its reply before the Commission. In fact, after the Commission had passed its orders on 5/6-11-1997, the appellant gave an advertisem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the appointment of a panel of experts has to be taken into account in deciding whether the Commission went wrong in directing an expert body, which was to be nominated as stated in the order, to give its opinion. 18. On a consideration of the above contentions and on a careful appraisal of the reasons given by Commission we are of the view that the order passed by the Commission was a purely discretionary order and was also an interim order pending the passing of a final order of temporary injunction and is not liable to be interfered within this appeal. As stated earlier, a reading of the Commission's order shows that it noticed that the appellant was relying upon opinions of experts to substantiate its claim of 102 per cent superiority in anti-bacterial action while the respondent, 1st complainant was also relying upon the opinion of its experts to contradict the appellant's claim. The matter being technical in nature, if the Commis-sion felt, as suggested by the appellant in its reply, that a panel of experts could go into the correctness of rival claims and give its opinion and if the Commission further said that after the opinion was given, parties could make their final su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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