Delhi High Court - Orders
Mankind Pharma Limited vs The Advertising Standards Council Of ... on 28 November, 2023
Author: Dinesh Kumar Sharma
Bench: Dinesh Kumar Sharma
$~38
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 768/2023
MANKIND PHARMA LIMITED ..... Plaintiff
Through: Mr. Rajiv Nayar, Sr. Adv. with Mr.
Ankur Sangal, Ms. Sucheta Roy, Ms.
Nidhi Pathan, Advs.
versus
THE ADVERTISING STANDARDS COUNCIL OF INDIA
..... Defendant
Through: Ms. Avni Singh, Adv.
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA
ORDER
% 28.11.2023 I.A. 23279/2023
1. Exemption allowed, subject to all just exceptions.
2. Application stands disposed of.
I.A. 23278/20233. The present application has been filed under Section 149 read with Section 151 CPC on behalf of the plaintiff seeking an extension of time for filing court fees.
4. Learned senior counsel for the plaintiff submits that he shall file the court fees within two weeks.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/11/2023 at 00:36:36
5. Let the court fees be filed within two weeks.
6. In view of the submissions made, the present application stands disposed of.
I.A. 23280/20237. The present application has been filed under Section 151 CPC on behalf of the plaintiff seeking permission to file a compact disc and a pen drive in the present suit.
8. Application is allowed subject to all just exceptions.
9. The application stands disposed of.
CS(OS) 768/2023
10. The present suit for declaration and injunction has been filed with the following prayer:
"a. A decree of permanent injunction restraining the Defendant, its directors, principals, officers, employees, agents, representatives and assigns from creating impediments in the dissemination of the Plaintiff's advertisement (filed at Page No. 5-11 of the documents filed with the Plaint) and the claims made therein on any medium/ platform and in any manner whatsoever; and b. A decree of permanent injunction restraining the Defendant from circulating the order dated 8 November 2023 to its members, the Government or to the general public in any manner, c. A decree setting aside the findings in the Defendant's order dated 8 November 2023 against the Plaintiff's advertisement; and d. A decree of declaration that the Plaintiff's advertisement (filed at Page No.5-11 of the documents filed with the Plaint) and the claims made therein are fair and honest and does not constitute a violation of the requirements under the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/11/2023 at 00:36:36 ASCI Code or any other advertising laws; and e. A decree of declaration that the order dated 8 November 2023 passed by the Defendant's CCC Review Panel is illegal and null and void; and f A decree for damages of INR 2,00,05,000/- be passed in favour of the Plaintiff and against Defendants;
g. An order as to costs in the proceedings; and h. Any other orders as this Hon‟ble Court may deem fit and proper in the facts and circumstances of the present case may also be passed."
11. An application bearing I.A. 23277/2023 filed under Order XXXIX Rule 1 & 2 read with Section 151 CPC has also been moved for ad interim injunction with the following prayer:
"i. An order of interim injunction restraining the Defendant, its proprietors, partners or directors, as the case may be, its principal officers, servants, distributors and agents, and all others acting for and on behalf of the Defendant, from creating impediments in the dissemination of the Plaintiffs advertisement (filed at Page No.5-11 of the documents filed with the Plaint) and the claims made therein on any medium/ platform and in any manner whatsoever, and from circulating the order dated 8 November 2023 to its members, the Government or to the general public in any manner,and ii. An order of ex-parte ad-interim injunction in terms of prayer (i);
iii. Any other order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case may also be passed."
12. Mr. Rajiv Nayar, learned senior counsel for the plaintiff submits that This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/11/2023 at 00:36:37 the plaintiff company started using Active Pharmaceutical Ingredients (APIs) procured from USFDA registered plants with valid DMF numbers, in its medicines. Learned senior counsel submits that the Drug Master File (DMF) has all the information on the manufacturing, stability, quality, packaging, purity and impurity profile of the API, for authorities to ensure that medicines of higher quality including very detailed and strict impurity profiles which safeguard against unknown adverse reactions.
13. Learned senior counsel submits that in June 2023, the Plaintiff came up with an advertisement campaign informing the public about the company's initiative regarding procuring DMF Quality APIs for its medicines and spent INR 33 Crores on the advertisement.
14. Learned senior counsel submits that the Advertisement is not comparative, only talks about the Plaintiff's own initiative and does not say that other drugs are of inferior quality. It has further been submitted that Advertisement only states that DMF is of international quality, which is truthful as DMF is filed for USFDA approval. It is an admitted fact that Plaintiff has procured APIs from DMF-qualified plants. Learned senior counsel submits that Advertisement is completely covered under the law of advertisement wherein courts have laid down that truthful statements are permissible as advertisement is an exercise of Article 19 of the Constitution of India. Reliance has been placed on Reckitt Benckiser v HUL and Dabur v Colortek Meghalaya.
15. Learned senior counsel submits that the advertisement is about the company's initiative, not regarding a particular product. Learned senior counsel submitted that on 25.07.2023, Plaintiff became aware that This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/11/2023 at 00:36:37 some law student had filed a complaint before ASCI with the following claims:-
i. Advertisement claims that the medicines sold by the Plaintiff are more effective and of better quality than of other Indian medicines. ii. As DMF is not required by law for quality approval in India, promoting the advertisement on that basis may lead the public to believe other drugs are not safe to consume.
16. Learned senior counsel submits that though the Plaintiff is not a member and therefore cannot be subject to ASCI, yet it sent a detailed response.
17. Learned senior counsel submits that on 21.09.2023, ASCI passed an order rejecting the complaint holding that the advertisement was not comparative and only informs the consumers about the initiative of the Plaintiff.
18. Learned senior counsel further submits that on 16.11.2023, the Complainant filed a review under the ASCI Complaints procedure against the order dated 21.09.2023, without relying on any additional material as required under the ASCI procedure. The plaintiff duly responded to the said review, by raising certain preliminary objections regarding the review being time-barred and no additional material being filed. However, the ASCI vide review order dated 08.11.2023 passed an order upholding the Complaint without considering the preliminary submissions made by Mankind and has also not given any reasoning as to why the previous order passed was incorrect.
19. Learned senior counsel submits that an injunction order is liable to be passed against the defendant as there prima facie case in favour of the This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/11/2023 at 00:36:37 plaintiff, in view of the fact that the defendant has not followed the procedure.
20. Learned senior counsel submits that the balance of convenience is in favour of the Plaintiff and if the advertisement is stopped there shall be irreparable loss.
21. Issue notice.
22. Ms. Avni Singh, learned counsel for the defendant has accepted the notice.
23. Ms. Avni Singh, learned counsel for the defendant has strongly refuted the averments made by learned senior counsel.
24. Learned counsel submits that the suit is filed on the basis of a recommendation made by an advisory expert body which has no penal repercussions and the only action taken by the defendant in case of non-compliance is to inform the regulatory authorities thereby, leaving it up to them to take whatever action, if at all, is necessary. Learned counsel submits that the Plaintiff is attempting to avert the regulatory/statutory proceedings, by approaching this Hon'ble Court prematurely. Reliance has been placed upon Lotus Herbal Pvt Ltd v Union of India and Anr. in Writ petition (L) No. 2845 of 2015.
25. Learned counsel for the defendant submits that the present suit is liable to be dismissed on account of lack of cause of action as the impugned order is merely a recommending order as well the entire suit rests on the apprehension of future injury i.e. a quia timet case. Learned counsel submits that quia timet cases require a greater standard of proof. Reliance has been placed upon Kuldip Singh v Subhash Chander Jain and Ors [(2000) 4 SCC 50].
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/11/2023 at 00:36:37
26. Learned counsel has further submitted that in such cases plaintiff must not only prove that the perceived threat is in existence but is also imminent. Learned counsel has further submitted that the present suit is premature on the grounds that the issue in the present suit is limited to the way in which the product is being advertised and not to the actual sale of the product. The plaintiff continues to be free to sell its products in any manner provided it is not against the law. It has further been submitted that the advertisement relates to the field of medicine.
27. Learned counsel submits that it is an admitted fact that DMF is not mandated under Indian law and DMF is not a factor of quality of the product.
28. Learned counsel has also submitted that no relief can be granted and their alternative remedy is available in the form of an „Independent Review Process‟ (IRP), which is chaired by a Retd. Judge of the Hon‟ble Supreme Court/High Court, as a mechanism for advertisers/complainants who are not satisfied with the recommendations of the CCC/FTCP, to seek a fresh view in the matter within 10 business days.
29. I have heard the submissions.
30. During the course of submissions learned senior counsel for the plaintiff submits that without prejudice to the rights and contentions of the plaintiff, the plaintiff is ready to run the following declaimer:
"DMF is not mandated under Indian law and is not a quality norm for products in India" (along with the advertisement as placed on page 5 of the documents.)
31. Learned senior counsel submits that they will avail the remedy as This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/11/2023 at 00:36:37 provided under the rules and file a review before the „Independent Review Process‟ (IRP), within 10 days taking all the objections as provided under the law before the „Independent Review Process‟ (IRP).
32. Learned counsel for the defendant submits that in view of the fact that the modified advertisement shall be run with the disclaimer, and not the original, the respondent automatically shall not press for the suspension of the advertisement.
33. Learned counsel also submits that in view of the modified advertisement the ASCI shall also not send the recommendation.
34. In view of the submissions made, the following directions are passed:
a. The plaintiff shall run the modified advertisement i.e., original advertisement with the disclaimer as given on page 5 of the documents.
b. The plaintiff shall avail the remedy of the „Independent Review Process‟ (IRP) within 10 days and may take all the objections as available under law. The department shall take the steps for the decision of the same in accordance with the law. c. In the meanwhile, the defendant shall not send the recommendation as contained in the impugned order in the e-mail dated 08.11.2023 addressed to Ms. Gunjan Virmani, M/s Mankind Pharma Limited. d. In case, the „Independent Review Process‟ (IRP) decides against the plaintiff, the respondent shall not send the recommendation to the appropriate authority for two weeks.
35. The above said directions have been passed on the premises of prima-
facie case, and any expression shall not tantamount to be an expression on the merits of the case.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/11/2023 at 00:36:37
36. Let the written statement be filed within four weeks with an advance copy to the other party.
37. List before Joint Registrar (Judicial) for completion of pleadings on 09.01.2024.
DINESH KUMAR SHARMA, J NOVEMBER 28, 2023/AR..
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/11/2023 at 00:36:37