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Reckitt & Colman of India Ltd. Versus Jyothi Laboratories Ltd. & Ors.

1999 (4) TMI 634 - CALCUTTA HIGH COURT

Civil Appellate Jurisdiction Tender No. 601 of 1999 A.P.O.T. No. 1999 C.S. No. 188 of 1999 - Dated:- 19-4-1999 - Ruma Pal and M.K. Basu For the Appellant/Petitioner/Plaintiff: Mr. Sudipta Sarkar, Mr. S.N. Mukherjee, Mr. Sanjib Barenjee and Mr. P. Bose, Advs. For the Respondents/Defendant: Mr. P. Chidambaram, Mr. Anindya Mitra, Mr. Pratap Chatterjee and Mr. Debal Banerjee, Advs. JUDGMENT The Court 1. The appellant manufactures ultra marine indigo (neel) both in liquid and powder form under the tr .....

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ct of a printed advertisement which was in Bengali. The Advertisement gave reasons why neel should never be used. This advertisement was the subject matter of a suit in this court. An exparte interim order was passed restraining the publication of the advertisement. This was confirmed after the filing of affidavits on 24th March, 1998. According to the respondent No.1, pursuant to this order that particular advertisement was not being published in the earlier manner. According to the appellant e .....

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ng advertisement. This was vacated after the filing of statements and hearing the parties. An appeal was preferred before the Supreme Court under section 55 of the Act which was dismissed summarily. 4. The subject matter of this appeal is in respect of a third advertisement. The offending advertisement is a commercial in Hindi and is broadcast on television. Briefly the story board shows that 'neel' leaves blue patches on a child's uniform which subjects the child to ridicule in his .....

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commercial then shows a scientist saying that "Ujala" dissolves in the water which brings, such whiteness to clothes which neel can never achieve. The next shot shows the mother holding up the child's shirt exclaiming on its new colour of whiteness. The next few shots show several children in while uniforms participating in a flat race. The child wins. Finally the child says that in whiteness Ujala was first, while the mother says that Neel 'failed'. According to the appell .....

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rom advertising "Ujala" in a manner which disparaged the appellant's product. An ad-interim order was passed on 39th March, 1999 restraining the respondents from advertising their product in a manner which made may disparaging reference to the appellant's product. This interim order was vacated at the instance of the respondent No. 1 before the filing of an affidavit on 7th April, 1999 on the ground that "the quality of the plaintiff's product has not been specifically .....

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999. The matter was directed to appear on 13th April. 1999 when, with the consent of the parties, it was directed that the appeal itself would be heard and disposed of on the basis of the papers available before the court. However, despite the respondent's counsels assurance, the offending advertisement continued to be shown. As such, on 16th April, 1999 when the hearing was concluded, the court stayed the order under appeal and revived the earlier order of injunction passed by the learned s .....

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y appealable under Order 43 Rule 1 sub-rule (r). No distinction is drawn between the kinds of interim orders, whether exparte or on contest (See: Motilal Singh v. Shib Chandra Base : 75 CWN 233]. 9. The decisions cited by the Respondent No.1, namely Shah Babulal Khimji v. Jayaben D. Kania : [1982]1SCR187 : Nurul Hoda v. Amir Hasan : AIR1972Cal449 (FB) and LCTLPL Palaniappa Chettiar v. M.R. Krishnamurthy Chetty : AIR1968Mad1 (DB) do not hold to the contrary. In Shah Babulal Khimji's case it w .....

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etters Patent is in no way curtailed or affected by section 104 of the Code of Civil Procedure and section 104 seeks to confer the right of preferring an appeal in respect of the various orders mentioned therein. In order words, by virtue of the provisions contained in section 104(1), a litigant enjoys the right of preferring an appeal in respect of various orders mentioned therein, even though such order may or may not be appealable under Clause 15 of the Latters Patent as a Judgment and the ri .....

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interlocutory application was pending disposal by the learned single Judge. It is well established, and as held in Wanger Ltd. v. Antox India P. Ltd. : 1990 SCC Supp. 727, that the appellant court would normally not be justified interfering with the exercise of discretion by a single Judge solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a Judicial ma .....

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. He in effect held that unless an advertisement specifically refers to the appellant's product, the appellant had no cause of action and that the appellant had failed to establish that the advertisement specifically referred to the appellant's product. 12. On the other hand there is the final and reasoned decision dated 24th August 1998 of another learned single Judge of this court in connection with the first advertisement: "Assuming in the advertisements insinuations were not mad .....

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only materials before the learned single Judge on record were the uncontroverted statements in the appellant's petition supported by the survey conducted by the IMRB which showed that 75% of the persons surveyed were of the view that the particular commercial referred to Robin Powder Blue and 25% thought that it referred to Robin Liquid Blue. This was the material on the basis of which the exparte order had been passed a week earlier on 30th March 1999. What persuaded the learned Judge to re .....

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re admittedly different. Besides, the order of the MRTP Commission was an interim order and has not conclusively decided any issue. It is also debatable whether the order of the Supreme Court that 'the appeal is dismissed' either affirmed the findings of fact arrived at by the MRTP Commission or indeed the law so as to operate as res judicata The statutory appeal to the Supreme Court under section 55 of the Act is permissible, like section 100 of the Code, only on substantial questions o .....

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ave been decided. It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork." 17. Before considering the merits, we make it clear that we are, for the purpose of this appeal, limiting ourselves to considering whether the appellant had a prima facie case, and if so, where the balance of convenience lies. 18. The appellant has based its cause of action on the tort of injurious falsehood. It is claimed that three conditions are required to be .....

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ons interviewed thought that the offending advertisement referred to the appellant's products, as leaving blue stains on clothes. According to the appellant it has an established reputation in neel and it has given its sales figures over the years to prove this. It is said that the representations disparaged the appellant's product not only by saying that "Neel" left ugly blue patches on clothes, but also that it "failed" as a whitening agent. 20. To support its conte .....

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entists" and who is a Senior Lecturer in the College of Textile Technology at Srirampore. Dr. Roy Chowdhury says after conducting tests "no unevenness or patches detected on treated clothes". The institute of Jute Technology has also certified on the basis of tests conducted not only that the appellant's product was an effective whitening agent, but also that it was superior to "Ujala". The appellant has said that there could be no dispute that the representations ma .....

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on the appellant to prove that the representations were untrue. The respondents who have filed an affidavit before this court, have relied on (i) a report of the Sriram Institute for Industrial Research that tests showed the appellant's product formed sediments at the bottom of a solution and that "Jjala" was a superior whitening agent and that the clothes treated with the appellant's product turned "bluish in shade"; (11) An analysis on dyes and dyeing of the Centra .....

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ods would lie only if the publication causes the plaintiff to suffer special damages. In this case, the appellant has not pleaded special damage nor that it has in fact suffered any damage by reason of the advertisement. 22. The respondent has submitted that the English Common Law did not allow the passing of an interim injunction when a defendant to an action for injurious falsehood claimed that it would Justify its stand. In Bestobell Paints Ltd. v. Bigg : 1975 FSPLR 421 a learned single Judge .....

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the trial, except in cases where the statement is obviously untruthful and libellous. That was established towards the end of the last century and it has been asserted over and over again." 23. It is debatable whether this is in fact the law. G.K. Milter J. after considering several English decisions in National Sugar Mills v. Asutosh : AIR1962Cal27 said : "The result of the English authorities is that before the court can be called upon to exercise its jurisdiction on an interlocutory .....

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ind the rule was the undesirability of expressing a judicial view before the verdict of a Jury. In India on the other hand, there is no question of trial by any Jury and it is the judge in the first instance and in the last who has to determine the matter finally. It is therefore not unreasonable to assume that English Law even if it as stated in Bestobell's case might not be applicable in this country. It is for the learned single Judge to consider and determine this. But it can at least be .....

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led principles of administration of this form of interlocutory remedy which is both temporary and discretionary. The object of the interlocutory injunction, it is stated : "... is to protect the plaintiff against injury by violation of his rights for which he could not adequately be compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial. The need for such protection must be weighed against the corresponding need of the defendant to be pr .....

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ehood as contended by the respondents. This court is only called upon to decided whether the appellant has a prima facie case not only on facts but also on law. 27. Prima facie it appears that the appellant is right in its submission that the English law on the question of grant of injunctions in cases of injurious falsehood may not strictly be applicable in the Indian context. For example the requirements for pleading and proving special damage in English law may be said to be inapplicable to t .....

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esides, in England the earlier requirement in English Common Law that special damage must be averred has been virtually done away with by section 3(1) of the Defamation Act, 1952 which provides : "In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege to prove special damage- (a) if the words upon which the action is found are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent f .....

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is stage consider the several decisions cited by the appellant to contend that even prior to the Defamation Act, under the common law as it stood earlier-where disparagement was clearly made out and it would appear that damage would necessarily arise from any publication intended by the defendants, special damage was not required to be proved. We leave the question for the learned single Judge to determine. Suffice it to say that at this prima facie stage, it cannot be said that the appellant ha .....

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erlocutory stage. Significantly, in Abdul Wahab Galadari v. Indian Express Newspapers (Bombay), Limited : AIR1994Bom69 , the learned Judge considered the defence of truth and found it prima Jade satisfying. The appellant has adduced some positive evidence and at the same time has also criticized the evidence put forward by the respondent No. 1 in support of its claim for Justification that the certificates and analysis relied upon by the respondent No. 1 do not show either that the appellant' .....

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nferred. Using words with the knowledge that the words are false or inaccurate is evidence of malice. And when a trader makes a statement about the efficacy of a rivals goods it is not unreasonable to hold that the claim would be taken seriously by reasonable persons [See Beers Abrasive Products v. International General Electric Co. of New York (supra)). Before us the respondent No.1 has relied upon the literature on a Robin Blue Carton to the following effect : "If by any chance excess Rob .....

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he line, even though thin, exists. According to De Beers Products v. Electric Co. of New York : 1975 2 All ER 599 if what is said is "My goods are better than X's. because X's are absolute rubbish", then, as established by dicta in White v. Mellin (supra), the statement would be actionable. Similarly in London Ferro-Concrete Company Ltd. v. Justice. Z (supra) when the defendant not only said that his methods were better than the plaintiffs, but also said that the plaintiffs met .....

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at Mellin's Food was positively injurious or that it contained deleterious ingredient and would be hurtful if it were used, I think there would have been a good ground of action". 35. The very purpose of Neel would not be achieved if in the process it left blue patches and to say that Neel 'failed' might be construed as inability to achieve that the purpose of whitening at all. However it would be disparagement of Neel only if the statements are untrue. The learned single Judge .....

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statement the group was established in France and the United States of America. The plaintiff was a Russian resident in London and claimed to be the appointed representative of the party in Great Britain and the head of the British Branch. He claimed that the defamatory statement referred to him individually. He brought an action against the respondent for damages for libel. The House of Lords said : "Where the plaintiff is not named, the test which decides whether the words used refer to h .....

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the Roman Catholic religious authorities that all Protestant shop assistants were to be discharged", and where seven pursuers who averred that they were the sole persons who exercised religious authority in the name and on behalf of the Roman Catholic Church in Queenstown were held entitled to sue for libel as being individually defamed." As Lord Porter said : "Each case must be considered according to its own circumstances. I can imagine it being said that each member of a body, .....

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found that the statement was not made concerning a particular individual but about a group of people. Having regard to the language used it was incapable of referring to the plaintiff individually. 38. The learned single Judge did not consider this aspect of the matter at all. At least the IMRB survey, which was yet to be controverted by the respondents, showed that a very large percentage of the persons interviewed thought that the advertisement referred to the appellant's product. 39. Give .....

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