TMI Blog2009 (1) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... ith moving/video advertisements. 2. The defendant had entered appearance on 12th December, 2008 when CS (OS) No. 2577/2008 was listed for the first time and were on caveat in CS(OS) No. 2646/2008. The defendant has also filed reply along with documents to I.A. No. 15237/2008 in CS(OS) No. 2577/2008. 3. Jurisdiction of this Court to entertain the present suits as a part of cause of action arises in Delhi, is not disputed. The defendant, however, submits that this Court should not entertain the present suits on the principle of 'forum non-convenience' and the parties have been extensively heard on the said aspect and on the aspect of grant of ad interim injunction. Suit Before the Calcutta High Court 4. The plaintiff(s) in August, 2004 had filed a civil suit in Calcutta High Court for injunction etc. against the defendant alleging disparaging advertisement depicting two cups including one cup with the alphabet 'H'. The 'Complan' cup was shown as growing in height in comparison to the cup with the alphabet 'H'. Injunction order was passed against the defendant with the direction to show the advertisement without showing the cup marked with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value in comparison to the plaintiffs' products. It is also alleged that the plaintiff(s) herein have advertised their products with specific disparaging reference to the defendant's products with the representation that the plaintiff(s) products are proven superior and make a child grow taller, stronger and sharper compared to a child drinking the defendant's product. Two suits filed before Delhi High Court and averments 8. This is the fourth and the fifth suit between the parties on the question of disparaging advertisements and after Calcutta, Madras and Bombay High Courts these suits have been filed in the Delhi High Court. plaintiff(s) in CS(OS) No. 2577/2008 have referred to the suit filed by the defendant before the Bombay High Court including the order of the Single Judge dated 31st October, 2008 rejecting the defendant's prayer for grant of interim injunction and the fact that the Division Bench has rejected the appeal filed by the defendant. It is alleged that the defendant has in the print advertisements made disparaging remarks by using the words 'cheap/cheaper' with reference to the product of the plaintiff(s) and is ,therefore, advertising/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porated and recognized under the Code. If a part of cause of action has arisen within the jurisdiction of this Court, the plaints cannot be rejected and the plaintiff(s) cannot be asked to approach the Bombay High Court. It was stated that cause of action in the present suits are the disparaging advertisements of the defendant, which are not the subject matter of the suit before the Bombay High Court i.e the alleged disparaging advertisement of the plaintiff(s). Per contra, the defendant argues that principle of 'forum non-convenience' is not alien to Section 20 of the Code and is protected by Section 151 of the Code. It is alleged that the present cases are one of forum shopping and directly a result of the advertisement of the plaintiff(s) herein, which is subject matter of challenge before the Bombay High Court. If the plaintiff(s) can show and advertise comparing the two products and highlight the lower price, the defendant is entitled to protect and advertise that their product is superior and better than the plaintiff(s) product and explain the price difference. Findings 13. Section 151 of the Code protects inherent powers to the Court and right to pass a suitable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law but the question is whether the said principle can be applied even when a party invokes territorial jurisdiction of a Court and satisfies requirements of Section 20(c) of the Code in the sense that a part of cause of action has arisen in Delhi. This question can be answered by examining whether Section 20 of the Code prohibits and oust applicability of the said principle. 15. Section 20 of the Code consists of three parts. First two parts have reference to residence or place of business of the defendant i.e. the party being sued. These two parts, therefore, take into consideration convenience of the defendant. Sub-section (c) stipulates that a suit can be also filed at the location where the cause of action or a part of cause of action has arisen. The place where a plaintiff resides or carries on business is not a relevant consideration for determining and deciding territorial jurisdiction. Thus, while giving dominus litis to the plaintiff to determine the place where he wants to institute a suit alternative options are available, the Code also protects right of the defendant by stipulating that a suit can be only filed where the defendant resides or works for gain or cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lead to a great anomaly. It would also give rise to the problem of forum shopping. We may notice some examples to show that the determination of the appellate forum based upon the situs of the Tribunal would lead to an anomalous result. For example, 'an assessee affected by an assessment order in Bombay may invoke the jurisdiction of the Delhi High Court to take advantage of the law laid down by it which may be contrary to judgments of the High Court of Bombay. This cannot be allowed. [See Suresh Desai and Associates v. CIT 1998 (230) ITR 912 at and CCE v. Technological Institute of Textile 76(1998)DLT862 ]. 40. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and Clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) of CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action, as what is necessary to be proved, before the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction. Even if it was found that a part of the cause of action has arisen within the jurisdiction of the court, on the principles of forum non convenience, or otherwise, it may refuse to exercise jurisdiction in the matter. 41. As regards the principle of forum convenience, the position is that the plaintiff's choice of forum is usually not disturbed unless the balance of convenience is strongly in favor of the defendant. In determining whether a more appropriate forum exists, connecting factors, such as those effecting the convenience of parties, expenses involved and the law governing the relevant transactions are to be looked into. The mere fact that a part of the cause of action has arisen within the jurisdiction of the court may itself not be considered to be a determinative factor compelling the court to decide the matter on merits. In determining which of the available forums is the forum convenience in a given matter, the convenience of all the parties had to be seen. In this behalf, reference may be made to the recent judgment of this Court in (India TV) Independent News Service Pvt. Limited v. India Broadcast Live LLC and Ors. (I.A Nos. 651/2007, 1336/2007 and 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt B being the more convenient forum. Thus, it is seen that in case for anti suit injunction, one court grants an injunction restraining the parties from approaching another court. Whereas in case of doctrine of forum non convenience, the court before whom the matter is presented, itself refuses to entertain the same and directs the parties to approach the other court being the more appropriate and convenient forum. It must also be kept in mind that the court granting an anti suit injunction must otherwise have jurisdiction over the matter. Similarly, the court rejecting a matter on the principle of forum non convenience must otherwise also have jurisdiction to entertain the same. This is so because if the court in either case does not have jurisdiction then, it cannot deal with the matter and consequently, it can neither grant an anti- suit injunction nor pass an order refusing to hear the matter on the plea of forum non convenience. 22. As stated above, Section 20 of the Code gives dominus litis to the plaintiff to file a suit in the courts located at a place where defendant resides or works for gain or where cause of action, partly or wholly arises. However, it is also equa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw any suit, appeal or other proceeding pending in any Court subordinate to it, and (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under Sub-section (1), the Court which 1[is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section, (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) 'proceeding' includes a proceeding for the execution of a decree or order.] (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiff(s) herein against which the defendant herein has sought injunction and prayed for other reliefs. The subject matter of the present suit is alleged disparaging advertisements by the defendant, which are questioned and challenged by the plaintiff(s) in the present two suits. The cause of action in the suits are different advertisements but the legal issue and inter connection between the alleged infringing advertisements both by the plaintiff(s ) herein and by the defendant herein are undeniable and even admitted in the plaints. The legal principles to be applied are the same and any conflicting or contrary judgments will cause confusion, plethora of further litigation or even new or counter advertisements and then another round of litigation. Section 10 of the Code does not bar passing of interim orders. Section 10 does not bar jurisdiction but merely lays down a rule of procedure. Section 10 of the Code promotes the objective to obviate contradictory judgments, avoid multiplicity of proceedings, delay and prevent protraction of litigation. It does not conflict with the principle of 'forum non-convenience'. Both powers serve the same purpose and complement each other, j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixed or strait jacket principal can be laid down but the general objective is to prevent a party from deliberately creating a situation which will cause confusion or conflicting judgments, while keeping in mind that the Court should not lightly change the forum and compel the plaintiff to go to another court and increase his inconvenience and expense. Balance of convenience is a material consideration, albeit not always a sole criteria justifying application of the principle of 'forum non-convenience'. However, when the plaintiff abuses his position as arbiter litis to deliberately choose a forum to defeat ends of justice, then in exceptional circumstances, the court can exercise the power to ex debito justitiae to prevent a proceeding from becoming vexatious or oppressive. 30. Paragraphs 30 and 33 in CS(OS) No. 2577/2008 and paragraphs 28-31 of CS(OS) No. 2646/2008 are in substance the same and make appointed reference to the proceedings before the Bombay High Court. For the purpose of deciding the present issue, I am reproducing below contents of paragraphs 30-33 of CS(OS) No. 2577/2008: 30. In yet another attempt at unfairly competing in the market place, the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefarious venture, through the proper and legal process, the defendant has now decided to adopt this mischievous and dishonest means of getting back on the plaintiffs by introducing the two impugned advertisements. The conduct of the defendant is indeed reprehensible. 31. It is apparent from the plaint itself that the proceeding before the Bombay High Court and the proceedings now initiated before the Delhi High Court are inter-twined and inter related. There is direct co-relation between the advertisements of the plaintiff(s), which are subject matter of the suit filed by the defendant before the Bombay High Court and the advertisements of the defendant subject matter of the present suit. The plaintiff(s) in the present suits have admitted the connection in the aforesaid paragraphs of the plaints. The plaintiff(s) have along with the list of documents filed the copy of the application and the pleadings filed before the Bombay High Court as well as the order passed by the learned Single Judge. The said order refers to principles, which have to been taken into consideration for deciding the question whether the advertisements of the plaintiff(s) are disparaging and the respectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e while hearing the motion for final disposal of the interim application. For this purpose, the Division Bench noticed that the matter was fixed for hearing before the Single Judge on 18th December, 2008. Interim application of the defendant is still pending before the Bombay High Court. Passing any interim order the present suits will result in and requires expressing opinion on the advertisement subject matter before the Bombay High Court. Conduct of both parties is a relevant circumstance to taken into consideration. The Bombay High Court has passed an ad interim order but the application for injunction is pending and is yet to attain finality. The defendant also relies upon the observations of the Division Bench. The plaintiff(s) rely upon the order of the single judge. 35. During the course of hearing, parties were asked to take instructions whether the matter can be referred to Mediation. Learned Counsel for the defendant on instructions had agreed to modify some of the sentences/contents, without prejudice to their rights for reference to Mediation. Learned Counsel for the plaintiff(s), however, felt that the defendant must make further modifications. During the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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