Law School NewsMoot Court Announcements

School of Law, Lovely Professional University is organizing its “Gavelled”: 4th Moot Court Competition scheduled from November 10th to November 11th in offline mode.

Participation is open for all law students pursuing an Integrated 5-year law course or 3-year law course. The Moot Proposition is based on Contemporary issues revolving around the intricacies of criminal and constitutional law.

Prizes for the Competition are as follows:

  • Winners- a cash prize worth Rs. -31000/- along with Three (3) one-year complimentary (Academic) subscriptions to SCC Online Web Edition to be distributed to the winning team worth Rs. 27,000 each
  • 1st Runner Up – a cash prize worth Rs. -21000/- along with Three (3) one-year complimentary subscriptions to EBC Learning worth Rs. 14,500 each.
  • Best Memorial – Rs. 10,000/-
  • Best Speaker – Rs. 5,000/-
  • Best Researcher – Rs. 5,000/-

Note: Only one team is allowed per institution to participate in the Moot Court Competition.

Please find attached the Brochure and the rulebook along with the moot proposition. Kindly note that the last date for registration is 5th November, 2022.

Link of the Registration: https://forms.gle/B82AZwZeSJWxA5Zf8

Link for payment of registration fee: https://paytm.me/oSi-2mt

Please go through the brochure to know the steps to register.

For any further queries, kindly e-mail us at: solmootcourt@lpu.co.in

For More Details Click Here: Updated dates & Updated brochure and rulebook

Student Convenors/ Contact persons

Ms. Neha Abbi- +91- 9855588720

Ms. Poornima Kapoor- +91- 8284847996

Ms. Tanisha Vijayvergiya- 91- 6377671471

Venue: Lovely Professional University, Jalandhar-Delhi, G.T. Road, Phagwara, Punjab (INDIA) -144411 – Google Maps

We hope to receive a positive response from your institution and look forward to your participation.

Allahabad High Court
Case BriefsHigh Courts

   

Allahabad High Court: Saurabh Shyam Shamshery, J. dismissed the writ petition which was filed praying to issue a mandamus commanding and directing to respondent 3 to exempt the age relaxation to the petitioners for Assistant Prosecution Officer and accept the application form of the petitioners for Assistant Prosecution Exam.-2022.

All the petitioners were candidates of recruitment process for the post of Assistant Prosecution Officer Exam – 2022 and their counsel contended that no recruitment process for Prosecuting Officers could be conducted after 2018 and after four years now in 2022, present recruitment process is commenced. During 4 years, many candidates have become over aged and by fixing cut off date for maximum age of 40 years to be 1-7-2022, respondents have declined petitioner’s legitimate right to participate in the examination and cut off date for maximum age ought to be 1-7-2021. It was further submitted that date of Advertisement was 21-5-2022, therefore, year of recruitment ought to be 1-7-2021 to 1-7-2022 and accordingly cut off date for maximum age ought to be 1-7-2021 and not 1-7-2022.

Counsel for respondent 2 submitted that advertisement was issued on the direction of State, therefore, respondent 2 has no submission on merit, however, Advertisement was issued on 21-4-2022, therefore, recruitment year would be 2022-23 and reckoning of date would be 01-07-2022, as such, cut off date is rightly fixed.

The Court noted that Covid-19 pandemic has startled and affected not only day to day life of a human being but has affected State’s normal working and an example of it is the recruitment process in question which is scheduled after four years. Resultantly, petitioners became over aged.

The Court however after hearing the parties and the evidence on record found that in the recruitment process, candidate between 21 years to 40 years are eligible to participate and there is no limit of attempts, therefore, petitioners were eligible to participate in recruitment held prior to recruitment held in 2018, therefore, the argument that they have been denied the right of legal expectation has no force. The court considered the fact that it was beyond control of the State, therefore, State cannot be faulted for not conducting recruitment examination during Covid-19 pandemic.

It was noted that Assistant Prosecution Officer examination 2018 was advertised by Advertisement dated 28-12-2018 and cut off date for maximum age was forced to 01-07-2018 whereas for Assistant Prosecution Office examination, 2022 (Advertisement dated 21-4-2022), cut off date for maximum age is fixed i.e. 1-7-2022. The relevant cut off date is fixed according to year of advertisement. The Court distinguished on facts the case of High Court of Delhi v. Devina Sharma, (2022) 4 SCC 643 relied on by the petitioners where the age was relaxed on basis of submission of the recruitment body as in the present case State has fixed the cut off date and being a policy matter not be disturbed or interfered not being to be 1-7-2022, which has followed earlier pattern arbitrarily.

The Court observed that it is settled proposition that due to inaction on the part of the State Government in not filing the posts year-wise, the candidates cannot get a right to participate in the selection process being over aged and that nobody can claim as a matter of right that recruitment on any post should be made every year. State has taken a decision which cannot be interfered except it is arbitrary which the petitioners have failed to make out a substantial case. In the present case, Commission has advertised on 21-4-2022, therefore, calendar year would be 01-01-2022 to 31-07-2000 and accordingly date would be first day of July of Calendar year i.e. 1-7-2022. Commission and State have followed the provisions correctly. Fixing of date cannot be said to be arbitrary.

The Court finally reproduced relevant paragraphs of the judgment in Vijay Kumar Singh v. State of U.P., 2022 (7) ADJ 677 (LB) and in placing reliance dismissed the writ petition finding no illegality and irregularity in fixing of reckoning date in terms of date of advertisement.

[Ajay Kumar Yadav v. State of U.P., Writ – A No. – 7783 of 2022, decided on 11-08-2022]


Advocates who appeared in this case :

Somendra Singh, Advocate, Counsel for the Petitioner;

C.S.C., Avneesh Tripathi, M.N. Singh, Advocates, Counsel for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Maharashtra Administrative Tribunal MAT
Case BriefsTribunals/Commissions/Regulatory Bodies

   

Maharashtra Administrative Tribunal, Mumbai: The coram of Mridula Bhatkar (Chairperson) and Medha Gadgil (Member) (A) while dealing with an application by a transgender (applicant) to allow her to apply for the post of Police Sub Inspector as a Transgender candidate, directed the State to come out with a clear policy regarding provision of the posts for other gender.

The applicant by birth has male sex. However, has opted for female sex. The applicant, therefore, has applied for the post of P.S.I pursuant to the Advertisement dated 23-06-2022 as a transgender candidate as the said option of transgender is provided by the M.P.S.C. In the application Form, the applicant has also opted to be considered as female candidate. The applicant further prayed for reservation of posts form Transgender Persons in the recruitment to the 800 posts as set out in the said advertisement.

Counsel for the applicant submitted that as per Article 16(1) & (2) of the Constitution of India, the applicant cannot be discriminated on the basis of sex or gender. He further submitted that the applicant is a Graduate in Engineering (Electrical) and Post Graduate in Technology (Electrical Power System Engineering). However, she has opted for this Government service and prays that she should not be disqualified in the physical test if at all she clears the examination.

M.P.S.C made a statement that the Application Form of the applicant is accepted by M.P.S.C and the applicant will be allowed to appear for the Preliminary Examination which is going to be held on 08-10-2022.

The Tribunal reiterated National Legal Services Authority v. Union of India, (2014) 5 SCC 438 to enable the Respondent-State to take the necessary steps while considering the candidature of transgender or candidates who are from the other sex while giving them employment in all the areas.

“135.2 Transgender persons’ right to decide their self identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

We, direct the Centre and the State Government to take steps to treat them as Socially and Educationally Backward Classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.”

The Tribunal thus expected from the Respondent-State that it will come out with a clear policy regarding provision of the posts for other gender within six months especially in respect of the Police Department as the candidate has to undergo specific physical test in the Police Department. The Tribunal directed the respondent 2, G.A.D and respondent 6, Social Justice and Special Assistant Department, to file affidavits in reply stating therein as to what steps are taken by the Government of Maharashtra in implementing the order of the Supreme Court in the case of National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[Vinayak B. Kashid v. Maharashtra Public Service Commission, Original Application Nos 644 of 2022, decided on 01-08-2022]


Advocates who appeared in this case :

Shri Kranti L.C, Advocate, for the Applicant;

Swati Manchekar, Chief Presenting Officer, Advocate, for the Respondents.


*Suchita Shukla, Editorial Assistant has reported this brief.

Delhi High Court
Case BriefsHigh Courts

Delhi High Court: Navin Chawla, J. passed an ad-interim injunction in favour of Marico Pvt. Ltd (‘plaintiff’) and found that the advertisement by Dabur India Ltd (‘defendant’) was disparaging their goods by mentioning them as ‘sasta amla’ and hinting that use of such oil will be detrimental to the customer, thus causing grave commercial injury to the plaintiff.

A company named Marico Limited, was engaged in the business of making hair oil. The plaintiff claimed in the application that it is the market leader by volume in the ‘AMLA HAIR OIL’ segment in the country and currently has a market share of more than forty percent. The Plaintiff further stated that it was informed by sources that a WhatsApp message was being circulated which showed a similar bottle as that of the Plaintiff’s bottle. Aggrieved by the WhatsApp message, a present suit was filed.

It was contented by the petitioner that the print advertisement of the respondent showed a similar bottle to that of Plaintiff’s product and showed a big cross on it, thereby asking the customers to reject it. The Plaintiff contended that reference to ‘sasta amla’ on the advertisement is a direct reference to his product since he has been running a long campaign for a significant period of time showing that his product is ‘affordable’ and ‘beneficial product.’

In order to further substantiate the claim, the plaintiff pointed out that his company’s hair oil was duly certified by the independent authorities and was found to be of similar quantity and efficacy as that of the respondent’s company. The Plaintiff also brought to the notice of the Court that Advertising Standards Council of India had found the claim ” Asli Amla, Dabur Amla” to be misleading.

The Counsel for the petitioner submitted that the print advertisement of the defendant was a clear case of disparagement of the plaintiff’s product. He also stated it was clear through the WhatsApp message which was circulated by the defendant that the product of the plaintiff along with print advertisement brought a clear association of the advertisement with the plaintiff ‘s product.

The Court noted that the plaintiff was able to make a good prima facie case in its favour. The Court took into account the fact that the WhatsApp Messages not only referred to the print advertisement but also to the product of the plaintiff. The Court held that the print advertisement was drawing reference to the plaintiff’s product and the allegation of cheaper oil being harmful to hair would prima facie amount to disparaging of the goods of the plaintiff. Thus, the Court granted ad-interim injunction in the favour of the plaintiff as balance of convenience liesin favour of him. Compliance with the said order should take place within two days.

[Marico Ltd. v. Dabur India Ltd., 2022 SCC OnLine Del 2070, decided on 13-07-2022]


Advocates who appeared in this case :

Senior Adv. Chander Mohan Lall, Adv. Ankur Sangal, Adv. Pragya Mishra, Adv. Raghav Vinayak Sinha, Adv.Trisha Nag, for the Petitioner;

Case BriefsHigh Courts

Allahabad High Court: The Division Bench of Rajesh Bindal, CJ. and J.J. Munir, J. dismissed an appeal which was filed against the order of the Single Judge who had dismissed the writ petition filed by the appellant with the observation that prior to his appointment, the vacancy was not properly advertised. 

An advertisement was made in the newspaper, named ‘Hindustan Kaa Swaroop’, which hardly had any circulation in the area. The appellant had initially moved before the Single Judge stating that he was appointed as a clerk in a school, however, the District Inspector of School had refused to sanction his appointment as a clerk on the ground that the advertisement clerical recruitment had been published in a newspaper having less circulation in the concerned area. 

The Court found that as the proper procedure for filling up the vacancy was not followed, the  Single Judge did not find merit in the writ petition as fair opportunity was not afforded to all the prospective candidates to apply for the post. The Court while dismissing the appeal stated that the order of the Single Judge was error free and in terms of Articles 14 and 16 of the Constitution of India, an advertisement has to be issued for inviting the applications giving fair opportunity to all the candidates. 

[Ravi Pratap Mishra v. State of U.P., 2022 SCC OnLine All 397, order dated: 17-05-2022] 


For appellant: Mr Ramesh Chandra Dwivedi 

For respondent: Mr Ankit Gaur  


*Suchita Shukla, Editorial Assistant has reported this brief.

 

Bombay High Court
Case BriefsHigh Courts

Bombay High Court: The petitioners challenged the order of a School Tribunal, whereby they were directed to reinstate the respondent/employee. Quashing the order of the Tribunal, the Bench of Rohit B. Deo, J. clarified that the advertisement of posts is not limited to posts that are reserved. It is necessary to advertise the posts in open category as well under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977. It stems from the constitutional rights provided under Article 14 and 16.

Factual Background:

The respondent was terminated from the petitioner institution on account of the appointment not being in accordance with Section 5 of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977(“Act’’), not holding the eligibility education at the time of the appointment, and wilful absence from work. The School Tribunal rejected the above-mentioned grounds and directed for the reinstatement of the respondent in the petitioner school.

Observations and the Decision:

The High Court, primarily clarified on the requirement to advertise the post in open category under the Act. The Bench was in disagreement with the judgment laid in Nita Ramesh Danane v. Dombivali Mitra Mandal (2008) 8 SLR 72 (Bom) and that was relied on by the School Tribunal. Nita Ramesh had held that the requirement of advertisement applies to reserved posts and in case of appointments to the open category, there would be no requirement of issuing an advertisement.

The High Court, held that the pronouncement in Nita Ramesh is in opposition to the decision given by the Division Bench in Priyadarshni Education Trust v. Ratis Bano, 2007 SCC Online Bom 720. The rationale of issuing an advertisement while making appointments in open category is to ensure that every eligible person is aware of the vacancy available. Such an action will give effect to the concept of equality provided under Articles 14 and 16 of the Constitution of India. The judgment in Priyadarshni Education Trust had further laid those educational institutions are not at par with private employer even if initially the institution is unaided.

On the issue of acquiring eligibility qualification subsequent to appointment, the Bench said that ‘it is trite law that the employee must be eligible to hold the post as on the date of the appointment if not on the date of the advertisement, as the case may be’ and ‘an employee, who was not qualified as on the date of the appointment, cannot be treated as regularly appointed with effect from the date on which he acquired the eligibility qualification’.

The employee in the present case did not have the right to hold the post, and therefore was not in the position to make any grievance or pray for any relief, even if it is assumed that he was terminated. The High Court held the order of the School Tribunal to be erroneous and quashed the same. No order for any compensation was made, as the same is only permissible when the order of termination is held to be illegal or improper. [Late Sanjay Gandhi Shikshan v. The Deputy Director of Education, Writ Petition 2260 of 2010, decided on April 19, 2022]

 


Appearances:

For Petitioners: Mr Pushkar Deshpande

For Respondents: Ms T.H. Khan, AGP (R1), Mr A.Z. Jibhkate (R2).

 

Case BriefsHigh Courts

Delhi High Court: The Division Bench of Manmohan and Dinesh Kumar Sharma, JJ., expressed that just because the scholarship advertisement was published in the Urdu language, does not mean that it was targeted at students belonging to a particular community only.

Appellant’s Counsel submitted that the Income Tax Tribunal while passing the impugned order overlooked the fact that the Assessing Officer had found that the Respondent-assessee had given merit-cum-scholarship/financial assistance to candidates predominantly belonging to a particular religious community which is violative of Section 13(1)(b) of the Act. He further stated that the advertisement for an educational scholarship was published by the assessee in Urdu language and, that too, in one newspaper only.

Primary Issue


Whether in the facts and circumstances of the case, the Income Tax Appellate Tribunal was correct in allowing the appeal of the assessee ignoring the fact that the assessee had paid most of the scholarship amount to the students of a particular religious community which was a clear violation of Section 13(1)(b) of the Income Tax Act, 1961?

Analysis and Decision


High Court found that the Commissioner of Income Tax (Appeal) and Tribunal gave a concurrent finding of fact that the benefit of scholarship to the poor and needy students was not confined to students of a particular community and a perusal of the list submitted by the assessee showed that the benefit had been granted to students from all communities without any discrimination.

The Bench expressed that,

 “…just because advertisement was published in Urdu language and that too in one newspaper, it cannot be presumed that it was targeted at the students belonging to a particular community only.”

Adding to the above, Court stated that undoubtedly, the principle of res judicata and estoppel are not applicable in taxation matters.

Stating that consistency of approach must be maintained, High Court held that no substantial question of law arose in the present appeals. [Commr. Of Income Tax {Exemption) v. Hamdard National Foundation (India), 2022 SCC OnLine Del 979, decided on 6-4-2022]


Advocates before the Court:

For the Appellant: Abhishek Maratha, Sr. Standing Counsel.

For the Respondent: Salil Aggarwal, Sr. Advocate with Madhur Aggarwal and Uma Shankar, Advocates

Case BriefsHigh Courts

Calcutta High Court: Shekhar B. Saraf, J. decided on a petition which was filed seeking remedy against impugned advertisements disparaging the goodwill and reputation of the petitioner and its product.

Facts:

The plaintiff/petitioner had filed the present suit against an advertising campaign containing five impugned advertisements issued by the defendant/respondent one after the other during October and November 2021 in relation to its product “Baidhyanath Chyawanprash Special”. For seeking remedy against the impugned advertisements the petitioner/plaintiff had moved this application, praying for an order of injunction restraining the respondent from issuing, publishing or uploading the impugned advertisements disparaging the goodwill and reputation of the petitioner and its product ‘Chyawanprash’ being sold under the trademark “DABUR”.

Arguments:

Sudipta Sarkar, Senior Advocate, appearing on behalf of the petitioner made the following arguments:

  1. It is admitted by the defendant/respondents that the impugned advertisements are comparative in nature, thus, such untruthful comparisons are actionable in nature.
  2. a malicious comparison has been made by the respondent in stating that its product is made with ‘100% pure ghee’ whereas petitioners’ product is made with a mixture of ghee plus vegetable oil spreading further misinformation and confusion because Dabur uses a mixture of til oil and pure desi ghee based on ancient ayurvedic texts.
  3. If it is assumed that no direct reference is made to Dabur, there still exists a generic disparagement to the entire class of Chyawanprash thus giving a cause of action to the petitioner as a manufacturer of the product.
  4. The First Schedule to the Drugs and Cosmetics Act, 1940 provides for various ayurvedic texts that may be followed to manufacture Chyawanprash and in none of these texts a Chyawanprash can be made with 42 ingredients. In fact, the minimum number required is 47 ingredients. Ergo, the reference to ‘42’ is false and consequently amounts to disparagement.
  5. The intent and the manner of representation in the impugned advertisements are false and misleading. According to the petitioner unfair or deceptive advertising is not protected under commercial speech as laid down in Article 19 (1) (a) of the Constitution of India but hits Article 19(2). Hence, it is impermissible.

Manish Biala, Counsel appearing for the Defendant/Respondent, made the following arguments:

  1. The defendant’s advertisement and right to commercial speech is a part of freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution. It is settled law that any restraint or curtailment of advertisements would affect the fundamental right under Article 19 (1) (a). The purpose of advertising is dissemination of information regarding the product advertised and public at large is benefitted by the information disseminated.
  2. The said implication is natural and allowed, as one consumer may look at the advertisement and conclude that one product is superior while some other consumer may look at it from another point and think that the other product is inferior. This does not constitute disparagement under the law, and the advertisement cannot be restrained.
  3. The plaintiff has attempted to create a monopoly in the market by abusing the process of law. It is settled law that the plaintiff cannot restrain others from advertising on the ground that the plaintiff has major market share for a particular product and thus, it is the obvious target of any advertisement.
  4. The defendant’s advertisements make the public at large aware of the beneficial knowledge for consumers.
  5. It is settled law that comparative advertising is permissible under the law. Furthermore, in the present matter, the defendant’s advertisement is not comparative in the strict sense as the defendant’s advertisement only compares the defendant’s product with an unnamed fictitious product.

Analysis and Judgment:

Sole issue for consideration before this court was that whether the impugned advertisements published by the defendant/respondent amounted to disparagement or not.

The Court discussed the case laws cited by both the parties on the issue of disparagement.

After analyzing the above judgments and plethora of similar ones the Court laid down certain key principles that were required to be kept in the Court’s mind before deciding on whether the offending advertisement is disparaging or is a mere puffery:

a) While deciding the issue of disparagement the court has to apply the reasonable man test, that is, whether a reasonable man would take the claim being made as being a serious claim or not.

b) The impugned advertisement campaign has to be looked into with a broader perspective to decide whether a serious comparison is made by the alleged infringer.

c) The comparison in the nature of “Better or Best” based on truthful claims is permitted, but comparison in the nature of “Good v. Bad” is not.

d) The impact and impression of the impugned advertisements has to be examined and if it gives out an impression that the rival product has a defect or demerit (which is not true) then such impression would make it disparaging.

e) The comparison between rival products is allowed only to the extent of “Puff” and honest trade practice. Any malicious or deliberate depiction of rival product in a bad taste is not permitted.

f) Generic disparagement of a rival product without specifically identifying or pin pointing the rival product is equally objectionable, clever advertising can indeed hit a rival product without specifically referring to it. No one can disparage a class or genre of a product within which a complaining plaintiff falls and raise a defence that the plaintiff has not been specifically identified.

g) The comparative advertising campaign should be ‘comparison positive’. If the advertisements contain valuable information for the consumers and can promote healthy competition in the market, the courts should be resilient and allow the negative derivatives of such comparison. This is because the final outcome is positive. However if it can be gauged that the message broadly demonstrates slanderous or indiscriminate negative comparison or insinuation, Courts should not be slow in ensuring that such messages do not spread.

The Court concluded that the above case squarely applies to the present dispute because the comparison made by the defendant/respondent is specifically pointing towards deficiency of the other rival products including the petitioner’s product. Moreover, the claim made by the defendant/respondent with regard to number of ingredients of the rival product is false and misleading.

It was further noted that when the defendant highlights that other Chyawanprash contain only 42 ingredients, which is an untrue statement, it cannot claim right to free speech as the same is not allowed to communicate untruthful facts about the other rival products.

The Court was of the view that in the present case, direct comparison of number of ingredients between the two products is not in the realm of grey area as it points towards the very composition and data of the generic product available in the market. Furthermore, the comparison with a number of ingredients, that is, 42 ingredients, is malicious and slanderous as the product cannot be complete with 42 ingredients and the product of Chyawanprash in the market are all having at least 47 ingredients as per the Drugs and Cosmetics Act, 1940. Ergo, a comparison with a fictitious number that is lesser than the minimum requirement, insinuates that those products are not in compliance with the Drugs and Cosmetics Act, 1940. Such a comparison is slanderous and mischievous, and accordingly, amounts to disparagement.

However, keeping in mind the various precedents cited by both the parties, and on suggestions that had fallen from the Bar, a modified version of the video advertisement was allowed on the following conditions:

a) The bottle that is shown in the 6th second of the advertisement shall only have the printed words “CHYAWANPRASH” and no other word;

b) The reference to the words “42 nahi” in the 29th to 31st second of advertisement shall also be removed.

[Dabur India Ltd. v. Shree Baidyanath Ayurved Bhawan (P) Ltd., 2022 SCC OnLine Cal 234, decided on 08-02-2022]


For the Plaintiff/Petitioner: Mr Sudipta Sarkar, Senior Advocate, Mr Jawahar Lal, Mr Debnath Ghosh, Mr Anuj Garg, Mr Sudhakar Prasad and Mr Pradipta Bose

For the Defendant/Respondent: Mr Manish Biala, Ms Amrita Panja Moulick, Mr Ashutosh Upadhaya and Mr Devesh Ratan


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: In the case where the bench of Hemant Gupta and V. Ramasubramanian*, JJ upheld NCLAT’s order of winding up of Devas Multimedia Private Limited, the requirement of advertising the winding up petition was looked into and the Court observed that the failure to publish an advertisement would not lead to the automatic dismissal of the petition for winding up.

Analysis

The Court analysed Rule 5 of the  the Companies (Transfer of Pending Proceedings) Rules, 2016 which prescribes the procedure to be followed by the Tribunal, upon the filing of a petition for winding up.

What does Rule 5 state?

The step-by-step procedure prescribed in Rule 5 is as follows:-

(1) The petition should first be posted before the Tribunal for admission.

(2) The purpose of posting the petition for admission is threefold, namely,

(i)  fixing a date for hearing of the petition;

(ii) issuing appropriate directions as to the advertisement to be published; and

(iii) indicating the persons upon whom the copies of the petition are to be served.

(3)  On the date when the petition is posted for admission, the Tribunal may direct notice to be given   to   the company and also provide an opportunity of being heard before giving directions as to the advertisement of the petition.

What is the purpose of advertisement?

The Court noticed that the essence of Rule 5 is to provide an opportunity of being heard to the company sought to be wound up, even before directions as to the advertisement of the petition are given.

Two purposes:

  • it provides an opportunity to all the stakeholders such as (i)creditors; (ii)workers; (iii) suppliers; (iv) customers; and (v) the general public, either to support or oppose the proceedings for winding up.
  • it serves as a warning/notice or red alert to all those dealing with the company so that they know that there could be an element of risk in dealing with the company.

Explaining why an opportunity of being heard is contemplated in Rule 5, before ordering the advertisement of the petition, the Court said,

“After all, the winding up of a company is like the insolvency of an individual. The advertisement of the petition for winding up, not merely serves as an opportunity to support or oppose winding up, but also harms the reputation of the company and sends shock waves in the stock market, if it is a listed company or among the stakeholders who have dealings with the company.”

What happens in case of failure to publish an advertisement?

The Court went through a number of authorities where the Court took a view that advertisement is mandatory, not only in view of the prescription contained in the Rules, but also in view of the specific order passed by the Company Court at the time of admission, directing the publication of the advertisement in specified newspapers. The Court, however, observed that even in such cases the failure to publish an advertisement was not seen as something that would lead to the automatic dismissal of the petition for winding up.

“This is for the reason that the advertisement of a petition for winding up is perceived to be something that worked at cross purposes, sometimes beneficial to several stakeholders as it provides an opportunity of hearing to them and sometimes as a measure of harassment of the company. There are cases where the companies themselves have opposed the advertisement of the petition on the ground that the same would harm their reputation and cripple their commercial activities. There are also cases where the failure to advertise has led to some of the creditors not having any notice of the proceedings and thereby suffering prejudice.”

Was non-publishing of advertisement detrimental to the case at hand?

In the case at hand it was alleged that the petition for winding up of Devas was never advertised nor even ordered to be advertised, either upon the admission of the petition or anytime thereafter. It was therefore contended that the failure to comply with this requirement which is mandatory, vitiates the whole proceedings.

To know what the case was about, read this.

In the present case, there were no stakeholders who were prejudiced by the failure of NCLT to order the publication of advertisement of the petition.

Also, this was not a case where the company is sought to be wound up on the ground of inability to pay debts or on just and equitable ground. This was a case of fraud and all stakeholders were fully aware of the proceedings and they had even shown extreme urgency in enforcing an ICC Arbitration award and BIT awards, before the conclusion of the winding up proceedings.

Therefore, the Court rejected the argument that the failure of the Tribunal to order the publication of an advertisement rendered the entire proceedings unlawful.

[DEVAS Multimedia Pvt. Ltd.v. Antrix Corporation Ltd., 2022 SCC OnLine SC 46, decided on 17.01.2022]


*Judgment by: Justice V. Ramasybramanian


Counsels

For DEVAS: Senior Advocate Mukul Rohtagi,

For shareholder¬appellant: Senior Advocate Arvind P. Datar,

For Antrix: Additional Solicitor General N. Venkataraman

For UPI: Additional Solicitor General Balbir Singh

Case BriefsHigh Courts

Madhya Pradesh High Court: A Division Bench of Rajeev Kumar Shrivastava and Sheel Nagu, JJ., dismissed the instant petition, whereby the petitioners sought to avail the benefits of subsequent relaxations in essential qualification.

The grievance of the petitioners was that they possess the qualification of Post Basic B.Sc (nursing) course without integrated CCH curriculum and as per the advertisement (August-September 2020) for the post of Community Health Officer; the said Post Basic B.Sc (nursing) course without integrated CCH curriculum was a disqualification. A subsequent instruction had been issued by National Health Mission on 23-11-2020 to allow even those persons having post basic B.Sc nursing course without integrated CCH curriculum to be eligible.

Counsel for the Mission, Sankalp Sharma contended that the Mission had decided to apply this amendment in the requisite qualification for the subsequent selection process and not for the current process which had already begun.

The Court expressed that, “It is trite principle of service jurisprudence that once process of recruitment commences on issuance of advertisement, no changes in the essential qualification/disqualification can be made during subsistence of the said recruitment.” The Court observed that, according to service jurisprudence the rules of game cannot be changed, once it has begun. The aforesaid time tested principle is based on sound reasoning that in case such change in the rules of recruitment is permitted then large number of persons who had not applied for being not eligible as per the recruitment and who would become eligible based on the relaxation made, would be deprived of their right to be considered for public employment which would amount to violation of their fundamental right under Article 16 of the Constitution. The Court relied on Maharashtra State Road Transport Corporation v. Rajendra Bhimrao Mandve, (2001) 10 SCC 51, whereby the Supreme Court had held that, the rules of the game meaning thereby, the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced.

Therefore, the Court disposed of the present petition holding that the subsequent relaxation in the essential qualification/disqualification notified by the Mission could not be made applicable to the on-going recruitment in question and thus petitioners cannot reap the advantage of the same. [Ramkhiladi Sharma v. National Health Mission, 2020 SCC OnLine MP 2975, decided on 05-12-2020]

Law made Easy

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

The interest of the consumer has to be kept in the forefront and the prime consideration that an essential commodity ought to be made available to the common man at a fair price must rank in priority over every other consideration.”

Y.V. Chandrachud, J. in Prag Ice & Oil Mills v. Union of India, (1978) 3 SCC 459

 Introduction

“An Act to provide for protection of the interests of consumers and for the said purpose, to establish authorities for timely and effective administration and settlement of consumers’ disputes and for matters connected therewith or incidental thereto”

The long title of the new Consumer Protection Act, 2019 (“2019 Act”) in the least number of words explains the whole and sole purpose of the Act. While the Consumer Protection Act, 1986 had nearly the same long title, but being around three decades old, did not inculcate the needful things that would have solved the problems of the modern and technology-dependent consumers, which is why a need was felt to replace the whole Act with a new one and bring a fundamental change.

The Parliament passed the Consumer Protection Bill, 2019 on 06-08-2019 to replace the Consumer Protection Act, 1986. The President of India gave its accent to the 2019 Act on 09-08-2019 and the same came into force on 20-07-2020. The 2019 Act has been enacted for the purpose of providing timely and effective administration and settlement of consumer disputes and related matters.

Related Read:

Substantial portion of Consumer Protection Act, 2019 along with related Rules to come into force on 20th July, 2020

Consumer Protection Act, 2019 comes into force from today

Brief History of Consumer Protection Act in India

Consumer Protection has always been a matter of great concern. In ancient India, effective measures were initiated to protect consumers from crimes in the market place. Ancient law-givers ably described various kinds of unfair trade practices and also prescribed severe punishments for wrongdoers. Mainly, acts of adulteration and false weights and measures were seriously dealt with.

In the medieval period, some Muslim rulers developed well-organized market mechanisms to monitor prices and the supply of goods to the markets. During the British period, the modern legal system was introduced in India and many laws were enacted to protect the interests of consumers generally.

Some of the laws which were passed during the British regime concerning consumer interests were: the Contract Act of 1872, the Sale of Goods Act of 1930, the Penal Code of 1860, the Drugs and Cosmetics Act of 1940, the Usurious Loans Act of 1918, and the Agriculture Procedure (Grading and Marketing Act) of 1937. These laws provided specific legal protection for consumers.

Today, the civil justice system is tainted with deficiencies that discourage the consumer from seeking legal recourse. However, the Consumer Protection Act of 1986, which provided easy access to justice, had brought a legal revolution in India as a result of its cost-effective mechanisms and popular support. However, with the gradual advancements in technology, the age-old 1986 Act was unable to keep up with the grievances of the modern consumer. Thus, a need was felt to substitute the old Act which resulted in the enactment of the Consumer Protection Act, 2019.

Key features of the Consumer Protection Act, 2019

  • The new Act which was drafted keeping in mind the needs of the modern consumers incorporates new terminologies which had no place in the old Act. Under Section 2(1)advertisement” is defined as any audio or visual publicity, representation, endorsement or pronouncement made by means of light, sound, smoke, gas, print, electronic media, internet or website and includes any notice, circular, label, wrapper, invoice or such other documents; which means that now a consumer who is aggrieved due to some kind of misleading advertisement can approach the authorities concerned seeking relief.
  • A provision for a minor being a consumer has been introduced under Section 2(5)(vii) of the Act where the parent or legal guardian can approach the authorities through the minor seeking relief.
  • A new clause of “product liability action[Section 2(35)] has been added with definition of “complaint” under Section 2(6)(vii) which lies against the product manufacturer [Section 2(36)], product seller [Section 2(37)] or product service provider [Section 2(38)] as the case may be.
  • Under the new Act, “consumer” is defined under Section 2(7) as a person who “buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose” or “hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.”

Thus, a consumer will now mean any person who “buys any goods” and “hires any services” which shall include both online and offline transactions through electronic means, teleshopping, direct selling or multi-level marketing.

  • The most important feature of the new Act definitely being the rights of the consumer under Section 2(9), which includes,
    • the right to be protected against the marketing of goods, products or services which are hazardous to life and property;
    • the right to be informed about the quality, quantity, potency, purity, standard and price of goods, products or services, as the case may be, so as to protect the consumer against unfair trade practices;
    • the right to be assured, wherever possible, access to a variety of goods, products or services at competitive prices;
    • the right to be heard and to be assured that consumer’s interests will receive due consideration at appropriate fora;
    • the right to seek redressal against unfair trade practice or restrictive trade practices or unscrupulous exploitation of consumers; and
    • the right to consumer awareness.
  • Section 2(10) and 2(11) of the Act talk about “defect” and “deficiency” “Defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or product and the expression “defective” shall be construed accordingly; whereas “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes—(i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and

(ii) deliberate withholding of relevant information by such person to the consumer.

  • The new additions include “e-commerce” Section 2(16), “electronic service provider” Section 2(17) along with the prescribed liabilities in relation to internet frauds. This has broadened the scope of the Act and it looks after the better protection of the rights of e-consumers and also enables them to proceed against e-commerce websites in the event of any infringement or violation.
  • Thereafter, a series of new terminologies have been added to Section 2 of the Act, for example a brand new concept of “product liability” has been included in the new Act which has been defined under Section 2(34) of the Consumer Protection Act, 2019 as “the responsibility of a product manufacturer or product seller, of any product or service, to compensate for any harm caused to a consumer by such defective product manufactured or sold or by deficiency in services relating thereto;” and in lieu of which the concepts of “product liability action”, “product manufacturer” etc. have also been included in the Act.

Central Consumer Protection Authorities

One of the major drawbacks of the previous Act was that there were no protection authorities in order to keep check, regulate and address the grievances of the consumers in an effective and speedy manner. Chapter III of the 2019 Act provides with the Central Consumer Protection Authority (CCPA) which has been added in order to regulate matters relating to violation of rights of consumers, unfair trade practices and false or misleading advertisements which are prejudicial to the interests of public and consumers and to promote, protect and enforce the rights of consumers as a class. Central Authority shall consist of a Chief Commissioner and such number of other Commissioners as may be prescribed, to be appointed by the Central Government to exercise the powers and discharge the functions under this Act. It will consist of an investigation wing headed by a Director-General for the purpose of conducting inquiry or investigation under this Act as may be directed by the Central Authority.

An appeal to an order passed by the CCPA on this issue can be filed before the National Commission within a period of 30 days from the date of the receipt of such order.

How to make a complaint?

Section 17 states that a complaint relating to violation of consumer rights or unfair trade practices or false or misleading advertisements which are prejudicial to the interests of consumers as a class, may be forwarded either in writing or in electronic mode, to any one of the authorities, namely, the District Collector or the Commissioner of Regional Office or the Central Authority.

The Central Authority under Section 21 has been provided with the powers to issue directions and penalties against false or misleading advertisements.

Consumer Dispute Redressal Commission (CDRC)

Chapter IV of the Act deals with the Establishment, Qualifications, Jurisdiction, Manner of Complaint, Proceedings etc. regarding the Consumer Disputes Redressal Commission. CDRC is empowered to resolve complaints with respect to unfair and restrictive trade practices, defective goods and services, overcharging and goods which are a hazard to life and safety. It has to be set up at three levels, i.e. the District, State and National levels (commissions). In comparison to the old Act, the jurisdictions of the commissions have been enhanced.

      District Consumer Disputes Redressal Commission (previously known as the District Forum):

District Commission shall consist of a President and not less than two and not more than such number of members as may be prescribed, in consultation with the Central Government. The District Commission now has the jurisdiction to entertain complaints where the value of the goods and services paid as consideration does not exceed one crore rupees. Section 34(2)(d) categorically states that the complaint can now also be instituted in a District Commission within the local limits of whose jurisdiction the complainant resides or personally works for gain, apart from filing in the jurisdiction where the other side actually or voluntarily resides, or carries a business, or has a branch office or personally works for gain.

      State Consumer Disputes Redressal Commission (previously known as the State Commission):

The State Commission shall have jurisdiction to entertain the complaints where the consideration exceeds one crore rupees but does not exceed ten crore rupees.

      National Consumer Disputes Redressal Commission (previously known as the National Commission):

The National Commission shall have the jurisdiction to entertain complaints where the consideration paid exceeds ten crore rupees.

The jurisdiction in which the complaint is to be filed is now on the basis of the value of the goods and services paid, which was not the case in the 1986 Act where it was on the value of the goods and services and the compensation, if any, claimed. A great emphasis has been placed on mediation which will be dealt with further.

Mediation

The Act has introduced a new chapter (Chapter V) on mediation as an alternate dispute resolution mechanism in order to resolve the consumer dispute in a much faster way without having to approach the Commissions. Thus, in the events where the mediation is successful in whole, the terms of such agreement shall be reduced into writing accordingly. Where the dispute is settled only in part, the Commission shall record the statement of the issues which have been settled, and shall continue to hear the remaining issues involved in the dispute. In case of unsuccessful mediation the respective Commission shall within seven days of the receipt of the settlement report, pass a suitable order and dispose of the matter accordingly.

Offences and Penalties

Section 21(2) and Section 89 of the 2019 Act provides the Central Authority with the power to impose a penalty in respect of any false or misleading advertisement, by a manufacturer or an endorser, it may, by order, impose on manufacturer or endorser a penalty which may extend to ten lakh rupees. Apart from this, a separate chapter (Chapter VII) for offences and penalties has been introduced where detailed penalties and punishments have been mentioned in relation to non-compliance, or manufacturing for sale or storing, selling or distributing or importing products that are adulterated or spurious.

Related Rules and Regulations

  • The Consumer Protection (E-Commerce) Rules, 2020 which are mandatory and are not advisories, lay down all the important information relating to the e-commerce entities keeping in mind both the consumer and the product/service provider. Key highlights are:
    • E-commerce entities according to Rule 5 are required to provide information to consumers, relating to return, refund, exchange, warranty and guarantee, delivery and shipment, modes of payment, grievance redressal mechanism, payment methods, security of payment methods, charge-back options and country of origin.
    • These platforms will have to acknowledge the receipt of any consumer complaint within 48 hoursand redress the complaint within one month from the date of receipt. They will also have to appoint a grievance officer for consumer grievance redressal.
    • Sellers cannot refuse to take back goods or withdraw services or refuse refunds,if such goods or services are defective, deficient, delivered late, or if they do not meet the description on the platform.
    • The rules also prohibit the e-commerce companies from manipulating the priceof the goods or services to gain unreasonable profit through unjustified prices.
  • As per the Consumer Protection (Consumer Disputes Redressal Commissions) Rules, 2020 which came into force on 20th July 2020, the amount of fee payable for filing the complaint in the District Commission up to Rs 5 lakhs has been made Nil according to Rule 7.
  • The credit of the amount due to unidentifiable consumers will go to the Consumer Welfare Fund(CWF).
  • State Commissions will furnish information to the Central Government on a quarterly basis on vacancies, disposal, the pendency of cases and other matters.
  • Apart from these general rules, there are Central Consumer Protection Council Rules, provided for the constitution of the Central Consumer Protection Council(CCPC).
    • It will be an advisory body on consumer issues, headed by the Union Minister of Consumer Affairs, Food and Public Distribution with the Minister of State as Vice Chairperson and 34 other members from different fields.
    • It will have a three-year tenure and will have Minister-in-charge of consumer affairs from two States from each region: North, South, East, West, and North-East Region.

Conclusion

The 2019 Act is a much required change in favor of the consumers considering the current age of digitization. It empowers them with clearly defined rights and dispute resolution process which will enable them to get their grievance addressed with a fast track mechanism.

In order to have a better understanding of the concepts have a glance over some of the landmark judgments given by our Courts according to the Consumer Protection Act, 1986 which is now repealed but the guidelines laid down in those cases helped in framing the new Consumer Protection Act, 2019.

  • The Delhi High Court while examining the concept of advertisement decided the case of,

 Horlicks Ltd. v. Zydus Wellness Products Ltd., 2020 SCC OnLine Del 873

The High Court passed an interim order restraining Zydus from telecasting its advertisement comparing Complan to Horlicks on the grounds that the same was misleading and disparaging. The Court relied on various judgments on misleading advertisements, disparagement and law governing publication of advertisements on television. Major decisions were:

Dabur (India) Ltd. v.  Colortek (Meghalaya) (P) Ltd., 2010 SCC OnLine Del 391

The Delhi High Court culled out the principles governing disparagement in the advertisements and held:

On the basis of the law laid down by the Supreme Court, the guiding principles for us should be the following:

(i) An advertisement is commercial speech and is protected by Article 19(1)(a) of the Constitution.

(ii) An advertisement must not be false, misleading, unfair or deceptive.

(iii) Of course, there would be some grey areas but these need not necessarily be taken as serious representations of fact but only as glorifying one’s product.

To this extent, in our opinion, the protection of Article 19(1)(a) of the Constitution is available. However, if an advertisement extends beyond the grey areas and becomes a false, misleading, unfair or deceptive advertisement, it would certainly not have the benefit of any protection.

 Pepsi Co. Inc. v. Hindustan Coca Cola Ltd., 2003 SCC OnLine Del 802

In Pepsi Co. it was held that certain factors had to be kept in mind while deciding the question of disparagement. Those factors were:

(i) Intent of the commercial,

(ii) Manner of the commercial, and

(iii) Story line of the commercial and the message sought to be conveyed.

These factors were amplified or restated in the following terms:

“(1) The intent of the advertisement – this can be understood from its story line and the message sought to be conveyed.

(2) The overall effect of the advertisement – does it promote the advertiser’s product or does it disparage or denigrate a rival product?

In this context it must be kept in mind that while promoting its product, the advertiser may, while comparing it with a rival or a competing product, make an unfavorable comparison but that might not necessarily affect the story line and message of the advertised product or have that as its overall effect.

(3) The manner of advertising – is the comparison by and large truthful or does it falsely denigrate or disparage a rival product? While truthful disparagement is permissible, untruthful disparagement is not permissible.”

Related Read:

Advertisement to Misleading Advertisement | Horlicks Ltd. v. Zydus Wellness Products

The complainant/respondent had participated in Mc Donald’s widely published scheme ‘Mc Donald’s Mein Khao Har Bar Prize Le Jao’ by placing two separate orders worth Rs 81. It was alleged by the complainant that Connaught Plaza Restaurants Ltd. (CPRL) a franchisee running Mc Donald restaurants has indulged in unfair trade practices by not giving the assured prizes as per the scheme, rather put the participants under the obligation to make a further purchase of a minimum Rs 20 in order to avail free French Fries. Also, the complainant had to send two SMS giving the coupon numbers, for which Rs 3 per SMS were charged. Moreover, the details of the entire scheme with its terms and conditions and the result of the winners were also concealed from the participating customers. Therefore, the complainant filed a consumer complaint before the District Forum praying to declare the scheme as unfair trade practice and that Connaught Plaza Restaurants Ltd. be directed to disclose the entire scheme and winners of the prizes. The District Forum allowed the complaint and awarded compensation and costs to the complainant of Rs. 10,000 and Rs.2,000.

Aggrieved, CPRL filed an appeal before the State Commission, but the State Commission modified the order of the District Forum by enhancing the compensation and awarding punitive damages to the tune of  Rs. 2,00,000 and Rs. 10,00,000.

CPRL then appealed before the NCDRC. The NCDRC held that no proof had been filed by the complainant that CPRL had collected the SMS charges or that it had an agreement with the Telecom Company/Service provider on sharing of SMS charges. Thus, the order of the State Commission could not be sustained on those grounds. On the other hand, it held that it is also true that the scheme was an unfair trade practice followed by Connaught Plaza Restaurants Ltd. This fact having been established by the concurrent findings given by the District and the State Commission. The complainant and other similar customers who may not have come forward to file a complaint need to be granted relief. Partly allowing the appeal, the NCDRC reduced the amount of compensation to Rs. 30,000 and costs to Rs. 70,000 respectively.

  • The National Consumer Disputes Redressal Commission (NCDRC) in the recent case of, Ernakulam Medical Centre P.R. Jayasree, 2020 SCC Online NCDRC 490 observed that,

“Releasing a dead body by a hospital to an unrelated third person unquestionably constitutes ‘deficiency in service’ within the meaning of Section 2(1)(g) and (o) of Consumer Protection Act, 1986.”

Related Read:

NCDRC | Releasing a dead body by a hospital to an unrelated third person unquestionably constitutes ‘deficiency in service’ within the meaning of S. 2(1) (g) & (o) of Consumer Protection Act, 1986

  • Recently, the Supreme Court in a judgment laid emphasis on the role of NCDRC in Union of India N.K. Srivastava, 2020 SCC OnLine SC 636, wherein the Court had dismissed an appeal which had aroused from an order of the National Consumer Disputes Redressal Commission. The complaint alleged medical negligence against Sarvodaya Hospital and Safdarjung Hospital. The NCDRC allowed the revision of Sarvodaya Hospital. While exonerating it of the finding of medical negligence, it held Safdarjung Hospital liable to pay the compensation of Rs 2 lakhs imposed by the State Consumer Disputes Redressal Commission.

The District Forum had dismissed the consumer complaint stating that there was no deficiency on the part of Sarvodaya Hospital in referring the complainant to a specialized facility. An appeal was filed before the State Consumer Disputes Redressal Commission by the original complainant. The SCDRC, by its judgment concluded that Sarvodaya Hospital was guilty of medical negligence and directed it to pay a sum of Rs 2 lakhs as compensation and costs quantified at Rs 20,000. However, the complaint was held not to be maintainable against Safdarjung Hospital. A revision was filed against the judgment of the SCDRC by Sarvodaya Hospital before the NCDRC which allowed the revision and came to the conclusion that Sarvodaya Hospital was not guilty of medical negligence, however, the NCDRC elaborated on the question as to whether Safdarjung Hospital had been correctly exonerated. The NCDRC held that though the complainant had not filed a revision against the order of the SCDRC specifically holding that Safdarjung Hospital was not amenable to the jurisdiction of the consumer fora, he was not precluded from challenging a finding which was adverse to him in the revision petition. On these facts, the NCDRC sustained the finding of medical negligence against Safdarjung Hospital and directed it to pay compensation quantified at Rs 2 lakhs.


† Editorial Assistant (Legal)

Chhattisgarh High Court
Case BriefsHigh Courts

Chattisgarh High Court: P. Sam Koshy J. allowed the petition and quashed the impugned order as it was bad in law.

The facts of the case are such that the challenge in the instant writ petition is the action on the part of the respondents declaring the petitioner ineligible for appointment to the post of Part-Time Sweeper on the ground that she has not passed 5th and 8th.

Counsel for the petitioners submitted that the advertisement does not reveal any minimum qualification prescribed for the post of Part-Time Sweeper whereas, in the very same advertisement for all other posts which were advertised the specific qualification or minimum eligibility criteria have been specifically reflected. It was further submitted that she has passed 10th examination under the Chhattisgarh State Open School Examination in the year, 2013 and as such for all practical purposes she is 10th pass. Therefore, declaring the petitioner to be ineligible is totally contrary and malafide and hence the impugned order liable to be set aside.

Counsel for the respondents submitted that the petitioner in fact has not studied class 5th and 8th and has straightaway under the State Open School Education has participated in the 10th examination and it was for this reason that the authorities have taken a decision declaring the petitioner ineligible.

The Court observed that the advertisement itself did not prescribe any minimum eligibility criteria or qualification for being appointed to the post of Part Time Sweeper. It was further observed that the petitioner has cleared her 10th examination under the Chhattisgarh State Open School Examination scheme and therefore for all practical purposes she is 10th pass candidate and hence the insistence of the respondents for having cleared 5th and 8th does not seem to be with any logical support, nor is it required under the advertisement or the recruitment process which were undertaken.

The court thus held that the action on the part of the respondents in declaring the petitioner ineligible is bad in law.

In view of the above, impugned order was quashed, petition allowed and disposed.[Sarojani Sona v. State of Chhattisgarh, 2020 SCC OnLine Chh 760, decided on 24-11-2020]


Arunima Bose, Editorial Assistant has put this story together

Cyril Amarchand MangaldasExperts Corner

Introduction

In a largely capitalistic economy, advertisements are one of the most important sources of creating awareness about various products. We may have shifted our reliance from advertisements in print media and televisions to advertisements on social media, however, advertisements continue to remain the largest creator of demand among consumers. Companies continue to employ the most innovative techniques to woo their customers and boost sales. While attempting to do so, corporates often tend to promote their brand as being superior to their competitor’s.

Over the course of this article, we examine the recent decision of the Delhi High Court (“the High Court”) in Horlicks Limited  v. Zydus Wellness Products Limited[1]  (“Horlicks case”), where the High Court has dealt with the law relating to misleading advertisements and disparagement.

Article 19 and Commercial Speech

Article 19(1)(a) of the Constitution guarantees the right to freedom of speech and expression to all citizens of India, and the essential corollary to the same is the right to be informed and access to information. In  Romesh Thappar v. State of Madras[2], the Supreme Court held that Article 19(1)(a) includes the freedom of press, however, it was in Indian Express Newspaper v. Union of India[3] that the  Supreme Court  held that commercial speech is protected under the ambit of free speech and expression under Article 19 and  the Supreme Court  observed that “We are of the view that all commercial advertisements cannot be denied the protection of Article 19(1)(a) of the Constitution merely because they are issued by businessmen and its true character is detected by the object for the promotion of which it is employed.”

The above position was elaborated upon in Tata Press Ltd v. Mahanagar Telephone Nigam Ltd.[4]  (“Tata Press”), wherein the Supreme Court observed the right of the consumer as a recipient of commercial speech by stating, “An advertisement giving information regarding a life-saving drug may be of much more importance to the general public than to the advertiser who may be having purely a trade consideration. Article 19(1)(a) not only guarantees freedom of speech and expression, it also protects the rights of individuals to listen, read and receive the said speech.” Further, the  Supreme Court  also held that misleading and deceptive advertising would not fall within the protection of Article 19.

The law relating to misleading advertisement

 As evident from the name, a misleading advertisement is one that deceives, manipulates or is likely to deceive or manipulate the consumer. These advertisements have the ability to cause serious damage to the consumers, as well as competitors and hence are required to be restrained. The courts, while deciding various cases, have tried to strike a balance between protecting the right to commercial speech and the interest of consumers and competitors.

In the recent Horlicks case[5], the High Court passed an interim order restraining Zydus from telecasting its advertisement comparing Complan to Horlicks on the grounds that the same was misleading and disparaging.

 Horlicks Limited  v. Zydus Wellness Products Limited

Horlicks Limited (“Horlicks”) approached the Delhi High Court, seeking a permanent injunction restraining Zydus Wellness Products (“Zydus”) from telecasting its advertisement, which showed that one glass of Complan (a Zydus Product) is equivalent to two glasses of Horlicks. The advertisement in contention was being telecast on multiple channels in English, Bengali and Tamil. Aggrieved by the advertisement, Horlicks approached the High Court on the ground that the advertisement was misleading and amounted to disparagement.

Zydus, on the other hand contended that the advertisement was not misleading as the information provided was accurate and was subject to the recommended serving size of both the drinks. A suit on similar grounds was filed by Horlicks for an advertisement published by Zydus in print media. The High Court had granted an interim injunction, restraining Zydus from publishing the advertisement, however, the injunction was vacated, when Zydus, voluntarily modified the advertisement, by including the disclaimer about the serving size and undertook to only publish the modified advertisement.

While arriving at a decision on the interim relief, the High Court analysed and relied upon the plethora of judgments on misleading advertisements, disparagement and law governing publication of advertisements on television, including:

(i) Reckitt & Colman of India Ltd. v. M.P. Ramchandran[6], wherein the Calcutta High Court held that a seller is allowed to declare that his goods are the best or better than that of his competitor’s, despite the said declaration being false. While making such declaration, he may also compare the advantages and disadvantages of his products and that of the competitors; however, the seller is not permitted to defame the goods of his competitors and if there is no defamation, the competitor will have no cause of action to file a case of misleading advertisement and disparagement.

(ii) Dabur India v. Colortek Meghalaya Pvt. Ltd. [7] (“Dabur India”), wherein the Delhi High Court laid down the following guiding principles while dealing with the issue of misleading advertisements:

  • Advertisements are protected under Article 19(1)(a) as commercial speech;
  • An advertisement must not be false, misleading or deceptive;
  • However, there are certain cases where the advertisement must not be taken as false, but as a glorious representation of one’s own product; and
  • Only when the impugned advertisement goes beyond glorifying its product, and is deceptive and misleading, the protection under Article 19(1)(a) would not be available.

The High Court while dealing with the principles on law of disparagement laid down in Pepsi Co. Inc. v. Hindustan Coca Cola Ltd. [8], held that:

(1) The intent of the advertisement – this can be understood from its story line and the message sought to be conveyed. (2) The overall effect of the advertisement – does it promote the advertiser’s product or does it disparage or denigrate a rival product? In this context, it must be kept in mind that while promoting its product, the advertiser may, while comparing it with a rival or a competing product, make an unfavourable comparison, but that might not necessarily affect the story line and message of the advertised product or have that as its overall effect. (3) The manner of advertising – is the comparison by and large truthful or does it falsely denigrate or disparage a rival product? While truthful disparagement is permissible, untruthful disparagement is not permissible.”

(iii) In Havells India Ltd. v. Amritanshu Khaitan[9] the Delhi High Court clarified the difference between comparative advertising and misleading advertising and disparagement. It observed that comparative advertising is healthy and encouraged in the spirit of competition, however, disparagement is not; and a cause of action shall arise in case of a misleading advertisement.

(iv) In Gillette India Limited v. Reckitt Benckiser (India) Private Limited[10], the Madras High Court noted the difference between electronic media and print media, while deciding cases of disparagement. In doing so, it observed that electronic media has greater power to leave a lasting impression in the minds of the viewers as compared to print media and held that, “catchy phrase, a well enacted skit or story line, or even distinctive sounds or distinctive collocation of colours make a lasting impact and more so, when viewed repeatedly.

The High Court while relying on the abovementioned cases held that the impugned advertisement was misleading and disparaging, even though the disclaimer was provided in the advertisement, the same was not clear and the advertisement created an impression that one cup of Complan was equal to two cups of Horlicks, without considering the serve size. The High Court, based on the above observation, held that the balance of convenience was in favour of Horlicks, who would suffer an irreparable injury if telecast of the impugned advertisement was not restrained and hence, granted the relief of interim injunction.

Conclusion

The law on misleading advertisement is ever evolving and the HC judgement in  Horlicks case[11] is an addition to the long list of judgements on misleading advertisement. It is interesting to note that the High Court allowed the circulation of the same advertisement in print media, however, restrained the telecast of the same. We understand that the differentiation between print media and electronic media lies in their impact on the audience. Since electronic media uses a combination of audio-visual techniques, it is more likely to influence its audiences and hence requires stricter regulations. Hence, the same advertisement was allowed to be published in print media, however, restrained from being telecast on television.

Additionally, an analysis of the case laws referred above shows that the law relating to misleading advertisements is extremely subjective and a small alteration in the fact may affect the outcome. It appears that while it is not disparaging and misleading for a seller to compare his products with his competitor’s and even claim that his product is better than those of his competitor’s, it may be disparaging and misleading if the competitor’s goods are shown to be inferior to the seller’s.


*Partner, Cyril Amarchand Mangaldas, Advocates & Solicitors

**Associate, Cyril Amarchand Mangaldas, Advocates & Solicitors

***Associate, Cyril Amarchand Mangaldas, Advocates & Solicitors

[1] Horlicks Limited  v. Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020.

[2] Romesh Thappar v.  State of Madras, 1950 SCR 594

[3] Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India,  (1985) 1 SCC 641

[4] Tata Press Ltd v. Mahanagar Telephone Nigam Ltd, (1995) 5 SCC 139.

[5] Horlicks Limited v Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020

[6] Reckitt & Colman of India Ltd. v. M.P. Ramchandran , 1998 SCC OnLine Cal 422

[7] Dabur India v. Colortek Meghalaya Pvt. Ltd. , 2010 SCC OnLine Del 391

[8] Pepsi Co. Inc.  v. Hindustan Coca Cola Ltd. , 2003 SCC OnLine Del 802 the Court laid the following principles:

  • Intent of the advertisement;
  • Manner; and
  • Story line and the message sought to be conveyed.

[9] Havells India Ltd. v. Amritanshu Khaitan , 2015 SCC OnLine Del 8115

[10] Gillette India Limited v. Reckitt Benckiser (India) Private Limited, 2017 SCC Online Bom 207

[11] Horlicks Limited  v. Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court:  Amit Rawal. J. dismissed the writ petition where the language of the advertisement clearly indicated the instruction for the selection.

A petition was made to quash the result of the Ex-Serviceman under BCA Category and Ex-Serviceman category as the same were not in accordance with instructions.

Sachin Jain and Naman Jain, Counsels for the petitioner submitted that the petitioner was retired from the Indian Army under Short Service Commission and had a disability of 20 percent and belonged to OBC (Non-Creamy Layer). An advertisement was made by HPSC for recruitment of the Ex-Serviceman and preferences were given to disabled Ex-serviceman having disability between 20 percent to 50 percent. The petitioner applied for the same post with all the requisite documents. The petitioner has been sanguine of selection was flabbergasted noticing the result that he was not selected. An Ex-serviceman suffering from a disability between 20% to 50% was to be given preference against dependents of those killed/disabled beyond 50% and thereafter, other Ex-servicemen can be considered for appointment.

Kanwal Goyal, counsel for the HPSC submitted that the decision of HPSC for not shortlisting the names of the petitioner in the written examination was correct as marks secured in the preliminary exam was less than cut off marks. It was also submitted that the reservation was to be applied at the time of final selection and not prior to that and thus urged for the dismissal of the writ petition.

The court opined that the language of instructions reveals that reservation to be applied for recruitment not to be made through competitive examination. Preliminary examination is not a competitive examination and thus the contention of the petitioner that violation of non-application of reservation at the time of preliminary examinations failed and the writ petition was dismissed. [Deepak Vaishnav v. HPSC, CWP No. 16637 of 2019 (O&M), decided on 01-08-2019]

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Ranjan Gupta, J. dismissed the writ petition on the ground that petitioners do not possess the requisite qualification as prescribed by the Recruitment Board.  

The facts of the case were that the respondent-department issued an advertisement for recruitment of Intelligence Assistant in the rank of constable in the Intelligence Wing of Punjab Police. Prescribed physical standards and the selection process was thereafter issued. A petitioner, being eligible for the post was called for the physical test and admit card was also issued. Thereafter, the petitioner received the information that his candidature was not accepted as he was found not eligible. Thereafter he appeared before the Recruitment board in order to represent but no action had been taken thereon. Thus, this petition. 

H.S. Saini, Counsel for the state submits that the petitioner does not possess the necessary qualification as per the advertisement and thus prayed for the dismissal of the present petition. 

The court observed that  a candidate should be a graduate from a recognized University or Institution and should also possess an ‘O’ Level Certificate of Information Technology from Department of Electronics Accreditation of Computer Course (DOEACC) or National Institute of Electronics and Information Technology (NIELIT) or its equivalent institution recognized by Government of India or any State Government. The selection board found that qualification possessed by the petitioner was not equivalent to that prescribed in the advertisement. The court thus held that “the emphasis in the advertisement is on “equivalent institution” recognized by Government of India or any State Government. None of the petitioners claim to have a qualification from such “equivalent institution”. Thus the petition was dismissed. [R.K. Harshvir Singh v. State of Punjab, 2019 SCC OnLine P&H 791, decided on 06-06-2019]

Patna High Court
Case BriefsHigh Courts

Patna High Court: Mohit Kumar Shah, J. entertained a writ petition which sought relief against Bihar Public Service Commission to re-advertise by the way of corrigendum for the post of Dental Doctor and to be allowed to participate in the selection process.

The petitioner prayed for declaring the advertisement of 2015 issued by the Commission contrary to the Reservation Rules, 1991. The petitioner contended that she completed BDS course in 2016. It was stated that 617 posts in dental services were created by a notification of 2013, thus total sanctioned strength in the dental services became 700, out of which a few were earmarked for promotions and a few were already occupied, leaving 558 posts vacant. The Government of Bihar, enacted the Bihar Dentist Service Rule, 2014 for regulating appointments and service conditions in the dentist service. The commission issued an advertisement of 2015, for respective vacant posts and applications were invited from the eligible candidates. Further, it was stated that only 16 posts were earmarked for the backward class female.

The learned counsel for the petitioner, Kripa Nand Jha, submitted that the eligibility criteria in the advertisement of 2015 was BDS degree from a recognized University and should had been registered under the Bihar and Orissa Medical Act, 1916. The counsel brought to the notice of Court that since all the vacant posts were advertised and the last date of submission of the form was in 2015, the petitioner who received his degree in 2016, and similar aggrieved students would be precluded from obtaining employment for years to come.

The learned counsel for the respondent Commission, Zaki Haider, submitted that upon a requisition sent by the Department of Health, the Commission has published the advertisement for appointment as the post of basic grade Dental Surgeon under the Department of Health, Government of Bihar. He referred to the requisition sent by the Government in 2015, it had been submitted that the roster clearance was obtained from the General Administration Department and only thereafter, the vacancies were advertised, category wise. He further submitted that earlier also the Bihar Dentist Rules, 2014, issued vide notification in 2014, which was challenged before the High Court and the learned Division Bench of Court had dismissed the said writ petition.

It was contended by the other respondents, that proviso to Article 309 of the Constitution of India, conferred the powers to said State and specifically stated that as far as the prayer of the petitioner regarding issuance of a direction upon the respondents to re-advertise the post of Dental Surgeon and 35% horizontal reservation to the female candidates was permitted. They further contend that the petition was misconceived and bereft of any merit as to the aforesaid notification of the Department of 2016, and was not effective retrospectively. The requisitions were made by the Health Department and, accordingly, the Commission had issued the advertisement taking into consideration the rules of reservation i.e. the Bihar Reservation for Vacancies in posts and Services for Scheduled Caste, Scheduled Tribes and other Backward Classes Act, 1991.

The Court observed that, all adverting to the issue of applicability of the notification issued by the Department, admittedly the same is not applicable retrospectively and moreover, the roster clearance has been taken by the Health Department from the General Administration Department after which requisition was sent and thereafter, the advertisement has been published immediately in 2015, in pursuance to the Bihar Dental Service Rules, 2014.  Hence, the Court held that the said notification of the General Administration Department in 2016 cannot be applied for the recruitment process under consideration in the present writ petition. The contention of the petitioner regarding the Rules, 1991 being contrary to the advertisement of 2015 was also declared void. The Court noted submission made by the learned counsel for the petitioner to the effect that since the petitioner passed in the year 2016 and the advertisement had been issued in 2015, the petitioner was pre-empted from applying for the post of Dental Doctor in the Health Services of the Government of Bihar, and rejected the same as the petitioner was not eligible to apply in pursuance to the advertisement of 2015, hence she had no locus standi to challenge the eligibility conditions. Hence, the petition was dismissed.[Pragya v. State of Bihar, 2019 SCC OnLine Pat 689, decided on 17-05-2019]

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir High Court: Ali Mohammad Magrey, J. dismissed a Writ Petition on the basis of formal closure of ‘Rehbar-e-Taleem Teachers’ (ReT) scheme by Government’s order.

A writ petition was filed by the petitioner requesting the High Court to issue a Writ of Mandamus commanding the respondents to select the petitioner and appoint him on the basis of merit eligibility against the post of ReT in a newly opened school. Respondent 7, who was placed at Serial 1, got less percentage than the petitioner, who was placed at Serial 3, and also her certificate was not certified by the University Grant Commission. The petitioner raised an objection to that.

The learned senior Additional Advocate General, entering on the behalf of the respondents, submitted that the government has formally sanctioned the closure of the ReT scheme vide Government Order No. 919-Edu of 2018, and therefore no indefeasible right has accrued to the petitioner claiming her appointment.

The Court held that since the government had formally withdrawn the appointment under ReT scheme, the Court could not direct the respondent to appoint the petitioner against a non-existing position. The Court was of the view that when the Government had taken a policy decision canceling all the advertisements for engagement of ReT,  the Court could not direct appointment against such post.

Hence, the writ petition was held to be devoid of any merit and dismissed in limine. However, the petitioner was granted liberty to challenge the Government Order No. 919-Edu of 2018.[Rayees Qadir Padder v. State of J&K, 2019 SCC OnLine J&K 418, decided on 07-05-2019]

Case BriefsSupreme Court

Supreme Court: Stating that the essential qualifications for appointment to a post are for the employer to decide, the bench of Arun Mishra and Navin Sinha, JJ said,

“The court cannot lay down the conditions of eligibility, much less can it delve into the issue with regard to desirable qualifications being at par with the essential eligibility by an interpretive re­writing of the advertisement. Questions of equivalence will also fall outside the domain of judicial review.”

The Court further held that if the language of the advertisement and the rules are clear, the Court cannot sit in judgment over the same. If there is an ambiguity in the advertisement or it is contrary to any rules or law the matter has to go back to the appointing authority after appropriate orders, to proceed in accordance with law.

“In no case can the Court, in the garb of judicial review, sit in the chair of the appointing authority to decide what is best for the employer and interpret the conditions of the advertisement contrary to the plain language of the same.”

The Court was hearing the appeal filed against the order of the High Court holding that candidates possessing the requisite years of experience in research and development of drugs and testing of the same, are also eligible to be considered for appointment to the post of Assistant Commissioner (Drugs) and Drug Inspectors under separate advertisements dated 04.01.2012 and 31.03.2015.

It was submitted before the Court that the academic qualifications coupled with the requisite years of practical experience in the manufacturing and testing of drugs were essential qualifications for appointment. Research experience in a research and development laboratory was a desirable qualification which may have entitled such a person to a preference only. The latter experience could not be equated with and considered to be at par with the essential eligibility to be considered for appointment. It was argued that the High Court erred in misreading the advertisement to redefine the desirable qualification as an essential qualification by itself.

The Court said that the plain reading of the advertisement provides that a degree in Pharmacy or Pharmaceutical Chemistry or in medicine with specialization in Clinical Pharmacology or Microbiology from a University coupled with the requisite years of experience thereafter in manufacturing or testing of drugs were essential qualifications. Preference could be given to those possessing the additional desirable qualification of research experience in the synthesis and testing of drugs in a research laboratory.

The Court also said that

“an expert committee may have been constituted and which examined the documents before calling the candidates for interview cannot operate as an estoppel against the clear terms of the advertisement to render an ineligible candidate eligible for appointment.”

[Maharashtra Public Service Commission v. Sandeep Shriram Warade, 2019 SCC OnLine SC 652, decided on 03.05.2019]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: The Division Bench of Hrishikesh Roy and A.K. Jayasankaran Nambiar, JJ. allowed a civil writ petition praying for a direction to use only eco-friendly materials for the purpose of advertisement during the ongoing election campaign in Kerala.

The instant PIL was filed seeking prohibition on the usage of Poly Vinyl Chloride (PVC) flex boards in the upcoming Lok Sabha elections, by political parties/ candidates. Submission of learned counsel Mr M.Kannan, appearing for the petitioner, was that PVC is a major pollutant and its use for flex boards would negate the Environment (Protection) Act 1986, Plastic Waste Management Rotes, 2016, and also the rights of citizens to a clean and safe environment under Articles 21 and 48-A of the Constitution of India.

Learned counsel Mr Murali Purushothaman representing the Election Commission of India produced a copy of communication dated 26-02-2019, whereby all recognised National/State political parties were directed to make the forthcoming election eco-friendly, and opt for the elimination of single-use plastic materials in the election campaign.

The Court took note of submissions on behalf of both the counsels and also noted that this Court, in a separate proceeding, had issued direction for removal of unauthorised PVC flex boards within the limits of various local authorities in the State. In view thereof, the Court directed all candidates and National/State political parties to strictly adhere to the guidelines of the Election Commission and not use PVC flex boards and other such non-bio-degradable material during the election campaign.[B.S. Syamkumar v. State of Kerala, WP(C) No 7193 of 2019 (S), Order dated 11-03-2019]

Case BriefsHigh Courts

Bombay High Court: The Division Bench comprising of B.R. Gavai and Riyaz I. Chagla, JJ. partly allowed an appeal filed against the judgment allowing notice of motion restraining appellant from inter alia (i) telecasting or broadcasting or otherwise howsoever communicating to the public or publishing two Television Commercials (impugned TVCs) or any part thereof or any other advertisement of a similar nature in any language or in any manner causing the impugned TVCs or any part thereof or any other advertisement of a similar nature to be telecast or broadcast or communicated to the public or published in any manner and (ii) disparaging or denigrating the plaintiff’s KWALITY WALL’S products or the plaintiff’s business in any manner whatsoever.

Factual matrix of the case states that, plaintiff-Hindustan Unilever Limited (HUL) are one of India’s well-known and reputed company in the FMCG sector. Plaintiff states that “KWALITY” has been a well recognised brand in India, having been in the market for over 70 years and was acquired by the plaintiff before entering into the business of ice creams and desserts in India and KWALITY has been used along with plaintiff’s own global brand WALL’S as KWALITY WALL’S.

“KWALITY” enjoys a special status in the eye of public being a very popular trade mark.

Plaintiff’s state that the two impugned Television Commercials (TVCs) advertised by defendant 1 and 2 had an effect of disparaging the frozen desserts, majority of which are manufactured and marketed by the plaintiff. In the said TVCs, it is shown that the product of Defendant 1 is manufactured by using 100% milk whereas frozen desserts are manufactured by using Vanaspati. The point of concern placed by the plaintiff is that Vanaspati is considered to be having bad effects on the health of the consumers and plaintiff is not using Vanaspati, in fact it uses edible vegetable oil in its products. Further, the plaintiff has stated that as far as frozen desserts are concerned, they contain a small amount of edible vegetable oil. However, the impugned TVCs depict that frozen desserts contain 100% Vanaspati oil. The said TVCs are not permissible in law.

Defendants stand:

According to the defendants, the advertisements did not show product of the plaintiff, however only a comparison between the product of the defendants and the frozen desserts. The contention of the defendants was that at least 30% of the manufacturers of the frozen desserts use Vanaspati.

Learned Single Judge’s decision:

It had granted an order of injunction, due to which the aggrieved filed the present appeal.

Detailed contentions of the parties:

Learned Counsel Mr Kadam on behalf of Appellant/Defendant 1 stated that as far as the first TVC was concerned, the word used by the defendants was ‘Vanaspati’, and since plaintiff had an objection to use the word ‘Vanaspati’, the same was omitted in subsequent advertisement with the word ‘Vanaspati tel’ meaning ‘edible vegetable oil’.

Perusal of the complaint made by the plaintiff to ASCI i.e. Advertisement Standard Council of India would show that the objectionable word for them was ‘Vanaspati’. Therefore, it was submitted that defendants omitted the word ‘Vanaspati’ and substituted the same with ‘Vanaspati tel’, which is in fact used by the plaintiff in its product, the grievance could not survive. To determine whether a particular TVC disparages the product, Court needs to apply the “test of an ordinary person with reasonable intelligence”, but the procedure adopted by learned Single Judge was not permissible in law.

“While considering the advertisement, rival is not expected to be hypersensitive to the advertisement.”

Injunction passed also bars the appellant from even airing similar advertisement without defining the scope thereof. At the most, injunction passed should have been in respect of the TVCs which were impugned in the suit. It has been stated that the learned Single Judge has gone far ahead and granted injunction in the widest possible terms.

Counsel for the respondent Mr Chinoy stated that if TVCs are seen in its entirety, the impression that the ordinary person with reasonable intelligence would get is that, the product of the appellant is manufactured by using only milk whereas, frozen dessert, in which market, the Respondent 1/plaintiff holds majority shares, is manufactured by using ‘Vanaspati’. Further, it was stated that, “Insofar as puffing up of the product of the appellant is concerned, nobody could have objection, even if an untrue statement is made. However, the advertisement carrying the message which disparages the product of the competitors, would not be permissible in law.”

The present appeal is an appeal against the grant of injunction in favour of the plaintiff.

Decision of the High Court in the instant matter with in-depth analysis on the aspect of ‘disparagement’:

The bench stated that first impression upon seeing the advertisement one would get is that the product of the appellant, ice cream is manufactured by using 100% milk, whereas frozen desserts are manufactured by using 100% Vanaspati or Vanaspati tel.

“For deciding the question of disparagement, Court will have to take into consideration intent of the commercial, manner of the commercial and storyline of the commercial and the message sought to be conveyed by the commercial.”

Further, it was noted that it is clear on perusal of the TVCs that the manner in which the advertisement is aired, message that is sought to be given is that the frozen desserts are manufactured by using only Vanaspati tel which is harmful for the health. Therefore, the appellant cannot be permitted to air the advertisement which disparages the product of its competitors.

“While hyped-up advertising may be permissible, it cannot transgress the grey areas of permissible assertion, and if it does so, the advertiser must have reasonable factual basis for the assertion so made.”

Bench opined that the view taken by the learned single judge bench stating the TVCs to be disparaging in nature requires no interference. Though blanket injunction is not required as the entire TVC is not of objectionable nature. The appeal was thus partly allowed. [Gujarat Co-Operative Milk Marketing Federation Ltd. v. Hindustan Unilever Ltd., 2018 SCC OnLine Bom 7265, decided on 13-12-2018]