Bombay High Court
Mangalam Organics Ltd vs Patanjali Ayurved Limited A Company on 29 July, 2024
Author: R.I. Chagla
Bench: R.I. Chagla
10-IAL-4586-24-COMIPL-21853-23.doc
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 4586 OF 2024
IN
INTERIM APPLICATION (L) NO. 22226 OF 2023
IN
COMMERCIAL IPR SUIT (L) NO. 21853 OF 2023
Mangalam Organics Ltd. ...Applicant/
Plaintiff
Versus
Patanjali Ayurved Ltd. & Ors. ...Defendants
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Mr. Hiren Kamod a/w Mr. Anees Patel, Ms. Usha Chandrasekhar, Ms.
Avisha Mehta i/by Suvarna Joshi for the Applicant/Plaintiff.
Mr. Zal Andhyarujina, Senior Counsel a/w Serena Jethmalani i/by
Mr. Archit Virmani, Ms. Radhika Katra, Mr. Kaushal Kumar for
Defendant No.1 present.
Ms. Charushila M. Vaidya, 2nd Asstt. Court Receiver present.
Mr. Gajanan Surve, Section Officer, Office of the Court Receiver
present.
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CORAM : R.I. CHAGLA J
DATE : 29 July 2024.
ORDER :
1. By this Interim Application, which has been filed under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (for short "CPC") read with Section 151 of the CPC, the Applicant/Plaintiff has sought direction against the Defendants/Respondents to comply with 1/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc the exparte ad-interim order dated 30th August 2023 and discontinue non compliance thereof. Further, relief is sought to punish with simple imprisonment Respondent Nos.2 to 10 who are in charge of the day to day business affairs of the Defendant /Respondent No. 1 for violation and / or disobedience of the exparte ad-interim order dated 30th August 2023 and for contempt of Court. The relief of disclosure and striking off the entire defence of Respondent No.1 in the present Suit are not being pressed.
2. This Court by the exparte ad-interim order dated 30th August 2023 passed in Interim Application (L) No.2226 of 2023 filed in the present Suit had granted ad-interim relief in terms of prayer clauses (a) and (c) of the Interim Application in favour of the Applicant/Plaintiff by which the Defendants/Respondents were restrained from in any manner using the impugned cone shape trade dress and impugned carton packaging shown at Exh.-X1 or any other shape/trade dress/carton packaging which is identical and / or deceptively similar to the Plaintiff's said cone shape trade dress and said artistic packaging shown at Exhibit I to the Plaint, so as to pass off the Defendants' impugned product and for those of the Plaintiff or in any other manner whatsoever. Further relief was granted in terms 2/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc of prayer (c) which was for appointment of the Court Receiver and directions issued to the Court Receiver to execute the commission.
3. On 27th and 28th September 2023, the Court Receiver through the Additional Special Receiver who was also appointed under the order dated 30th August 2023 executed the commission and during which the Respondent/Defendant No. 1 was served with the copy of the said order and also copies of the pleadings filed in the above Suit. The Additional Special Receiver had prepared the Site Reports and the Defendant/Respondent No. 1 became fully aware of the exparte ad-interim order dated 30th August 2023.
4. The Defendant/Respondent No. 1 filed Interim Application (L) No. 33220 of 2023 on 29th November 2023 under Order XXXIX Rule 4 of the CPC inter alia seeking to vacate the said exparte ad-interim order.
5. The Applicant/Plaintiff has stated that inspite of being aware of the exparte ad-interim order dated 30th August 2023, on 28th September 2023, the Defendant/ Respondent No. 1 in flagrant violation of the said Order continued to manufacture, market, 3/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc advertise and sell the impugned Camphor product bearing the impugned cone shape trade dress and impugned carton packaging and thereby committing willful disobedience and contumacious breach of the said order dated 30th August 2023 passed by this Court.
6. The Applicant/Plaintiff has stated that the impugned goods continued to be sold on www.amazon.in website. An order was placed by the Applicant/Plaintiff on 1st February 2024 and the impugned goods were received on 6th February 2024. Invoice in respect of the impugned goods was issued by "S.S. Enterprises" and "packed on" date printed showed "September 2023".
7. The Applicant/Plaintiff has further stated that on 2nd February 2024, the field representative of the Applicant came across the impugned product bearing impugned cone shape trade dress and the impugned carton packaging being sold at "Patanjali Mega Store"
at Virar. As per the Applicant's directions, the representative caused to conduct a trap purchase of the impugned product and a purchase invoice dated 2nd February 2024 was issued. Upon a closer up look at the impugned product purchased on 2nd February 2024, the 4/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc Applicant was shocked and surprised to learn that the 'packed on' date printed thereon was 'DECEMBER 2023 i.e almost two months after being served with a copy of the said order dated 30th August 2023.
8. There were further online searches carried out during which the Applicant came across the Defendant/Respondent No. 1's open and flagrant continuous use of the impugned cone shape trade dress and the impugned carton packaging by promoting, advertising and offering for sale the impugned camphor product on the e- commerce website www.amazon.in. The Purchase order was placed by the Applicant on the said website on 7th February 2024 and copy of invoice was issued.
9. The Applicant/Plaintiff accordingly filed the present Interim Application under Order XXXIX Rule 2A of the CPC read with Section 151 of the CPC. This was served upon the Respondent's Advocate on 14th March 2024.
10. The Applicant has filed additional Affidavit dated 13th March 2024 ("1st Additional Affidavit") in support of the 5/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc present Interim Application. It was mentioned in the 1st Additional Affidavit that the impugned product continued to be sold through "Patanjali Mega Store" at Virar. This was noticed by the Applicant's representative upon visit to the said store on 9th March 2024 and upon purchase of the impugned product viz. "Patanjali Aastha Kapoor Cone" from "Patanjali Mega Store" at Virar, an invoice was issued which is annexed to the said 1st Additional Affidavit.
11. The Applicant's representative has carried out further visits at the "Patanjali Mega Store" at Virar on 10th, 11th and 12th March 2024 during which it was noticed that the Defendant's impugned camphor product namely "Patanjali Aastha Kapoor Cone"
continued to be sold. The purchases were effected and invoices which of the said dates have been issued and are annexed to the 1st Additional Affidavit.
12. The Applicant had filed another additional Affidavit ("2nd Additional Affidavit") dated 30th April 2024. In the 2nd Additional Affidavit, it is mentioned that the impugned products were being sold at 'Levansh Ayurvedic & General Stores'on 11th April 2024. This was noticed by the Applicant's representative upon visit to 6/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc the said store and purchase of the impugned product. An invoice dated 11th April 2024 was issued which has been annexed to the 2nd Additional Affidavit.
13. It is stated in the 2nd Additional Affidavit that the impugned products continued to be sold through the "Patanjali Mega Store" at Virar and purchase was made of the impugned product by the Applicant' representative on 18th April 2024 and the invoice issued has also been annexed to the 2nd Additional Affidavit. Further purchase of the impugned product from "Patanjali Mega Store" at Virar was made on 26th and 28th April 2024 and invoices were issued on the said dates which have also been annexed to the 2nd Additional Affidavit.
14. The Respondents have filed their Reply only on 10th June 2024. In paragraph 9 of the Affidavit in Reply, the Respondents have stated that it did not sell any products post the order of this Court dated 30th August 2023 except by one of the Respondents' outlets, namely "Patanjali Mega Store" at Virar. It is further stated in the said paragraph that the sale carried out by the said store was purely inadvertent and unintentional and thus, the 7/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc answering Respondent (Affidavit affirmed by Defendant/Respondent No. 10) most respectfully apologizes with folded hands and tenders an unconditional and unqualified apology for committing breach of the said order passed by this Court. Moreover, it is stated that the answering Respondent immediately intimated the concerned mega store to immediately stop the sale of impugned product Patanjali Camphor Cone until the said order passed by this Court stands vacated. It is relevant to note that until this point the impugned products were being manufactured and sold till April 2024 i.e. for 7 months after execution / notice of the said Order. The sales as aforementioned have been referred to in the present Interim Application and also in the 1st Additional Affidavit as well as 2nd Additional Affidavit. It is submitted that the repeated sales for 7 months can never be termed "purely inadvertent and unintentional".
15. Further it is relevant to note that in the said Affidavit in Reply at paragraph 10, the Respondent No. 10 has stated that as soon as the Respondents became aware of the injunction order dated 30th August 2023, the Respondent's intimated all its whole-sellers, warehouses and stores though its sales team to stop selling and supplying the product injuncted. Further, even on the 8/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc date of the said Affidavit, the Respondents further intimated by e- mail to the whole-sellers, warehouses and stores not to sell any impugned product available with them.
16. The Respondents have stated in the said Affidavit in Reply that the invoices were issued by Amazon, which shows that the injuncted product was sold by "S.S. Enterprises" which is claimed to be a third party over whom the answering Respondents have no control.
17. The present Interim Application came up before this Court on 21st June 2024, when the Applicant submitted that the contents of the said Affidavit in Reply of the Respondents dated 10th June 2024 was contrary to the record. The Respondents sought time to file response Affidavit to the Applicant's 1st and 2nd Affidavits along with an apology. This Court by the order dated 21st June 2024 directed the Respondents to file such Affidavit giving all details as to whether there are further sales of the impugned product after the date of the said order. The Respondent No. 10 was directed to remain present before this Court.
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18. Pursuant to the order dated 21st June, 2024, a further Affidavit dated 2nd July 2024 was filed by Respondent No. 10 as Director of Respondent No.1. This was filed along with an undertaking dated 2nd July 2024 and an Affidavit in compliance of the order dated 2nd July 2024. The said Affidavit was affirmed by Respondent No.10 on his personal knowledge. In paragraph 3 of the said Affidavit, the Respondent No. 10 stated that the supply and sale of the injuncted product had been carried out by the Defendant No. 1 and that was after the said order dated 30th August 2023 came to the knowledge of the Respondents on 28th September 2023. The Respondent No. 10 has in the said Affidavit stated that he sincerely regrets that the injuncted product has been supplied and sold, despite the operation of injunction order as passed by this Court and sought the pardon of this Court with the assurance that such conduct will not be repeated in the future and to assure the same he is submitting an undertaking along with Affidavit of compliance to the effect that there will be no breach of any orders passed by this Court.
19. Further, Respondent No. 10 in the said Affidavit dated 2nd July 2024 has stated that post the passing of the injunction order, there has been a cumulative supply of the impugned Camphor 10/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc product amounting to Rs. 49,57,861/- to its whole sellers / distributors and authorised stores out of which the stock value of Rs. 25,94,505/- is still lying at Defendant No.1's whole sellers / distributors and authorized stores which has been seized at the respective location. Respondent No.1 has given an undertaking to the effect that the balance stock of Rs. 25,94,505/- has been stopped from further selling.
20. The Applicant thereafter filed Affidavit in Rejoinder dated 18th July 2024. In the said Affidavit in Rejoinder, reference has been made to the impugned product being sold through the Respondents' 'Bhayandar Patanjali Arogya Kendra' and reliance has been placed on handwritten invoice issued on 13th April 2024, which was issued in lieu of computer invoice being "refused" to be issued and from the photos of the impugned product, 'Packed on' date printed: 'March 2024'.
21. Further reference has been made in the Affidavit in Rejoinder to the impugned product continued to be sold through "Patanjali Mega Store" at Virar and which is supported by invoices issued of purchases made by the representative of the Applicant on 11/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc 21st June, 2024 i.e. the date of the aforementioned order passed by this Court. There is also reference made to the impugned product being sold through Respondents' "Bhayandar Patanjali Arogya Kendra" and upon a purchase made by the Applicant's representative of the impugned product, a handwritten invoice was isued as once again the computer invoice was 'refused' to be issued. The invoice has been annexed to the Affidavit in Rejoinder.
22. Reference has been made in the Affidavit in Rejoinder to the impugned product continued to be sold through "Patanjali Mega Store" at Virar. A purchase was made by the representative of the Applicant on 3rd July 2024 and payment was made through Gpay as computer invoice was again refused.
23. The Applicant also came across the impugned product being offered for sale on Respondent No.1's website www.patanjaliayurved.net on 3rd July 2024 which has been mentioned in the Affidavit in Rejoinder. It is relevant to note that the time of filing of the present Suit, the Respondent No. 1's website did not list the impugned product. The Respondents had commenced sale of the impugned product on Respondent No.1's website as recently as 12/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc July, 2024. The Applicant caused to purchase the impugned product on 4th July 2024. Annexed to the Affidavit in Rejoinder are screenshots of orders placed.
24. The impugned products were still being offered for sale on Respondent No. 1's website on 8th July 2024 and screenshots showing listing of the impugned product on Respondent No. 1's website are annexed to the Affidavit in Rejoinder.
25. This Court on the next date of hearing of the present Interim Application i.e. on 8th July 2024 and upon being appraised of the aforementioned fact of continue sale of the impugned product by the Respondents, directed the Respondent No. 1 to deposit a sum of Rs. 50,00,000/- with the Prothonotary & Senior Master of this Court.
26. The Applicant has made reference to the fact that after the hearing on 8th July 2024 i.e. on the same date, the impugned product was once again purchased from "Patanjali Mega Store" at Virar. The payment was made through Gpay as computer invoice was refused.
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27. There is also reference made to the impugned product being offered for sale on third party website www.pujagoodies.com and which screenshots and purchase invoice of the said website are annexed to the Affidavit in Rejoinder.
28. The Respondents have through Respondent No.10 filed Affidavit in Sur Rejoinder dated 20th July 2024. The Respondents have admitted that the subsequent sales have taken place. These sales were alleged to be in violation of the instructions issued by the Defendant/Respondent No. 1 who proceeded to stop centralised billing of impugned product. It is mentioned that the action for stopping of the centralised sale was taken on 22nd June 2024. It is relevant to note that in the statement which forms part of the Affidavit dated 2nd July 2024 filed by the Respondent No. 10 on behalf of the Respondents, there is mention of a sale of the impugned product made on 24th June 2024 through Alkeshwar Enterprises and this is through centralised sale, with reference number provided.
29. The Respondents in the Affidavit in Sur-Rejoinder have stated that the sale of the impugned products on 3rd July 2024 and 8th July 2024 by "Patanjali Mega Store" at Virar is unlawful. The 14/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc Respondents have stated that they have initiated recall of the impugned product on 9th July, 2024 and the same is being collected from the said stores.
30. Further, the Respondents have stated in the Affidavit in Sur-Rejoinder that due to inadvertent internal error, listing of the impugned product on www.patanjaliayurved.net was reset and three orders were placed between 4th July 2024 and 9th July 2024 and that the Respondent No. 1 has directed its IT Team to address "the glitch and ensure the delisting is restored", in order to ensure that there are no sales via the official website. The Respondents have further stated that the Defendant No.1 has instructed its IT team to delist/remove the impugned product from the list of items/products being sole on the website.
31. Mr. Hiren Kamod, the learned Counsel appearing on behalf of the Applicant/Plaintiff has submitted that the Defendants / Respondents continue to manufacture and sell the impugned products post knowledge of the injunction order dated 30th August 2023 i.e. on 28th September, 2023 which is evident from the photographs showing packing dates as of September 2023, 15/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc December 2023 and March 2024. There is an admission on the part of the Respondents that there was a breach of the exparte ad-interim order dated 30th August 2023, when it came to their knowledge on 28th September 2023.
32. Mr. Kamod has submitted that the Respondents have sold / supplied the impugned products to all its authorized stores/dealers etc. continuously for at least 9 months from the date of the knowledge of the exparte ad-interim order, and thus it is evident that the Respondents' breach the injunction order is nothing less than willful and absolutely deliberate.
33. Mr. Kamod has submitted that a false Affidavit has been filed by Respondent No. 10 on 10th June 2024 and the statements made therein are admitted to be false as the sales / supplies post knowledge of the said ex- parte ad-interim Order were made by the Respondent No.1. This has been admitted in subsequent Affidavit dated 2nd July 2024. There were sales of the impugned product post passing of the exparte ad-interim order disclosed in the statement appended thereto till as recent as on 24th June 2024. 16/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 :::
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34. Mr. Kamod has submitted that there is a further false statement made in the said Affidavit dated 2nd July 2024 that action had been taken by the Respondents stopping of centralised sale on 22nd June 2024. The statement appended to the Affidavit dated 2nd July 2024 shows that the Respondent No.1, continued centralized sale of the impugned products at its authorised dealers/stores even on 24th June 2024.
35. Mr. Kamod has submitted that the Respondents have continued with the sale of the impugned products to all its authorised dealers/stores, etc. and which sales have continued and are continuing and there has been no ceasing of such sales as falsely contended by the Respondents. He has placed reliance upon the Affidavit in Rejoinder to show that there has been sales on 3rd July, 8th July and 9th July 2024 as well as offer of the impugned product on the official website of Respondent No. 1 viz.
www.patanjaliayurved.net as recent as on 3rd July 2024 and on the third party website www.pujagoodies.com as recent as on 10th July, 2024. He has submitted that this is in blatant disregard of orders of this Court including the exparte ad-interim order passed by this Court apart from being in violation of the undertaking given by Respondent 17/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc No. 1 through Respondent No.10 to this Court where the Respondent No.1 undertook to strictly abide by the exparte ad-interim order dated 30th August 2023 and the subsequent orders passed by this Court. Further, that the Respondent No. 1 undertook not to engage in any act or omission that will amount to a violation of any orders passed by this Court in the present case. Further undertaking that the balance stock of injuncted camphor product will not be offered for sale until the injunction order has been modified by this Court.
36. Mr. Kamod has submitted that the Respondent No. 10 has blatantly lied under oath and has made various false statements in his Affidavit filed before this Court and is guilty of perjury and this Court ought to exercise its powers under Section 340 of Cr.P.C.
37. Mr. Kamod has submitted that in light of false statements made on oath by Respondent No. 10 on behalf of the Respondents during the hearing of the present Interim Application, the statements made in the Affidavit in Sur-Rejoinder affirmed by Respondent No. 10 on behalf of the Respondents dated 20th July 2024 ought not to be believed.
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38. Mr. Kamod has submitted that this Court ought to take action on the statements made by Respondent No. 10 where he has stated that he will have to atone for his conduct and that he is willing to surrender before this Court and is willing to be subjected to such terms as this Court considers appropriate and fit, to restore the Majesty of Law and to abide by any directions issued by this Court to demonstrate the genuineness of the unqualified apology already tendered.
39. Mr. Kamod has submitted that this Court ought to exercise its discretion under the contempt jurisdiction under Article 215 of the Constitution of India read with Section 94 and Order XXXIX Rule 2A of the CPC as also its inherent powers under Section 151 of the CPC and punish the contemnors with imprisonment or heavy costs/fine or with both.
40. Mr. Kamod has placed reliance upon the decision of this Court in Cargil India Private Limited Vs. M.M. Oil Enterprises1, where this Court has exercised its powers under Section 94(c) read with Order XXXIX Rule 2A of the CPC, notwithstanding its inherent 1 Notice of Motion 1107/2019 in Comm IPR Suit No. 425/2017 decided on 16.05.2019 19/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc jurisdiction vested under Article 215 of the Constitution of India, to commit a person, who is the Defendant therein, found guilty of disobedience of its injunction orders to undergo eight weeks simple imprisonment.
41. Mr. Kamod has also placed reliance upon the decision of the Supreme Court in Sciemed Overseas Inc. Vs. BOC India Limited2, wherein the Supreme Court has considered the seriousness of filing of false Affidavits and observed that the filing of such Affidavits in number of cases has shown an alarming increase in the last fifteen years as compared to the number of cases prior to that. Reliance has been placed on an earlier decision of the Supreme Court in Suo Motu Proceedings against R. Karuppan, Advocate3, wherein the Supreme Court has observed the sanctity of affidavits filed by parties has to be preserved and protected and at the same time the filing of irresponsible statements without any regard to accuracy has to be discouraged.
42. Mr. Kamod has also placed reliance upon the 2 (2016) 3 SCC 70 3 MANU/SC/0338/2001 : (2001) 5 SCC 289 20/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc decision of this Court in Khursheed Anwar Mohammad Ali and Anr. Vs. Merit Healthcare Pvt.Ltd.4, wherein the learned Single Judge held that the Defendants who are in breach of orders passed by this Court should be saddled with severe costs or otherwise orders passed by this Court will not be complied with.
43. Mr. Kamod has also relied upon the decision of the Delhi High Court in Pfizer Inc. and Others Vs. Triveni Interchem Private Limited and Others5, wherein the Delhi High Court has in a similar situation as in the present case where false statements were made on oath, observed that this position is ex facie not acceptable and that the Defendant had no regard to the truth. The Defendant was held to have committed willful and contumacious contempt of the Court within the meaning of Order XXXIX Rule 2A of the CPC. The Delhi High Court whilst holding that in such a case, under Order XXXIX Rule 2A, the Defendant is required to be punished for such willful and such contumacious contempt of Court and the said provisions provide punishment in civil imprisonment, the Court is aware of the legal position that detention in civil prison compromises 4 2019 SCC OnLine Bom 7832 5 2023 SCC OnLine Del 363 21/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc the liberty of the contemnor and is an extreme step, to be taken only where there is no other manner in which the contempt could be purged. The learned Single Judge in the said decision disposed of the Application under Order XXXIX Rule 2A of CPC by directing the Directors of Defendant to pay to the Plaintiff an amount of Rs. 2,00,00,000/- within a period of two weeks from the date of the said order and failing which they shall be taken into custody and detained in a civil prison for a period of two weeks at Tihar Jail, Delhi.
44. Mr. Kamod has also placed reliance upon the decision of the Karnataka High Court in K. Somanath Nayak Vs. D. Veerendra Heggade6, where the Karnataka High Court has held that Order XXXIX Rule 2A should be read with Section 151 of the CPC and in the event there is deliberate violation of the interim orders of the Court, the Court should exercise powers under the aforementioned provisions and compensate the aggrieved party. No one should be allowed to abuse the process of the Court. The violation of Court orders by the litigant should be viewed seriously, as the same would affect the fabric of administration of justice by the Court of law.
6 Writ Petition No. 7692 of 2022 decided on 5.05.2022 MANU/KA/2073/2022 22/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc
45. Mr. Zal Andhyarujina, the learned Senior Counsel appearing for the Respondents has submitted that there are two periods to be considered i.e. (i) the period from the Respondents' knowledge of the exparte ad-interim order i.e. on 28th September 2023 till the filing of the Affidavit dated 10th June 2024; and (ii) the period thereafter. He has submitted that in respect of the first period, there is at the highest negligence on behalf of the Respondents in not complying with the injunction order. However, there is no deliberate or willful disobedience of the injunction order.
46. Mr. Andhyarujina has submitted that insofar as the 2nd period is concerned i.e. after 10th June 2024, the Respondents have taken appropriate steps to comply with the injunction order and this can be seen from the subsequent Affidavit filed on 2nd July 2024 and the Affidavit in Sur-Rejoinder dated 20th July 2024. He has submitted that the Respondents have informed all the control sales channels i.e. exclusive stores, super distributors and distributors to immediately stop the sale of impugned product. Further, action has been taken by the Respondents for stopping the centralised sale on 22nd June 2024.
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47. Mr. Andhyarujina has submitted that the sales of the impugned product on 3rd July 2024 and 8th July 2024 from "Patanjali Mega Store" at Virar was conducted against the instructions by the Defendant/Respondent No. 1 and such sale was against the standard practice and procedure whereby sale should only be conducted via centralised billing system. The Respondent No. 1 had immediately upon knowledge of such purported sales deputed its representatives to physically visit "Patanjali Mega Store" at Virar and enquire into the same and upon coming to know of the unlawful sales, the concerned store owner was immediately informed and instructed to refrain from any such conduct in the future. The injunction order was brought to the notice of the concerned store owner.
48. Mr. Andhyarujina has submitted that the Respondent No. 1 has proceeded to recall the existing stock of the impugned products from its control sales channels and all its exclusive stores. The recall of impugned products has been initiated and is being colleccted from the stores. He has placed reliance on the e-mails dated 9th July 2024 issued by Respondent No. 1 from the relevant personnel/teams to immediately bring into effect the recall 24/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc action. He has also referred to steps taken by Respondent No. 1 who is deputing its representatives to make unscheduled visits to various stores to ensure that no unlawful sales of the products (without official billing) are being made in order to ensure compliance with the orders passed by this Court.
49. Mr. Andhyarujina has further submitted that the sales of the impugned product through the official website of the Respondent No. 1 was through inadvertent internal error. There were three orders placed between 4th July 2024 and 9th July 2024. As soon as the same came to the knowledge of the Respondent No. 1, the IT team were immediately directed to address the glitch and ensure that the de-listing is restored. He has submitted that though the orders were placed, no sales were made and the orders were cancelled and payments made were duly refunded. Particulars of which have been mentioned in the Affidavit in Sur-Rejoinder.
50. Mr. Andhyarujina has submitted that insofar as the third party website is concerned, the Respondent No. 1 does not control such third party websites. The Respondent No. 1 has taken steps to inform these third party websites to refrain from selling the 25/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc impugned product and have also brought the injunction order to the knowledge of the third parties. He has submitted that in the event, there is continued sale by the third party websites of the impugned product, the Respondent No. 1 will undertake appropriate action against the same to ensure compliance with the orders passed by this Court.
51. Mr. Andhyarujina has placed reliance on the decision of the Delhi High Court in Bristol-Myers Squibb Holdings Ireland Unlimited Company and others Vs. BDR Pharmaceuticals International Pvt. Ltd. and Anr. 7, where the Delhi High Court has referred to the decision of the Supreme Court in U.C. Surendranath Vs. Mambally's Bakery8. The Supreme Court has held that a person is guilty under Order XXXIX Rule 2A of the CPC only where the disobedience is willful and disobedience simpliciter would not invoke Order XXXIX Rule 2A of the CPC.
52. Mr. Andhyarujina has submitted that the Allahabad High Court in Sitaram Vs. Ganesh Das9 has considered the purpose of 7 2022 SCC OnLine Del 3877 8 (2019) 20 SCC 666 9 1973 SCC OnLine All 296 26/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc Order XXXIX Rule 2A of the CPC. The purpose is not to punish the man but to see that the decree or order is obeyed and the wrong done by disobedience of the order is remedied and the status quo ante is brought into effect.
53. Mr. Andhyarujina has also referred to the decision of the Delhi High Court in Louis Vuitton Malletier Vs. Capital General Store and Others10, wherein the Delhi High Court referred to the decision of Amazon.Com NV Investment Holdings LLC Vs. Future Retail Ltd.11, where the Supreme Court had disagreed with the view expressed by the Supreme Court in Sitaram (supra) that Order XXXIX Rule 2A requires not "mere disobedience" but "wilful disobedience". The Supreme Court in Amazon.com (Supra) held that by adding the word "willful" into the said provision is not quite correct and required to be reviewed by a larger Bench. The Delhi High Court observed that the Supreme Court in Amazon.Com (supra) held that unlike provisions dealing with contempt of Court, which are intended to be fundamentally punitive, Order XXXIX Rule 2A is intended to compel and enforce obedience of the order of interim injunction. 10 2023 SCC OnLine Del 613 11 Civil Appeal Nos. 4492-4493 of 2021 27/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc
54. Mr. Andhyarujina has submitted that the powers of this Court under Order XXXIX Rule 2A cannot be exercised in the present case, as the disobedience of the injunction order is required to be willful and the Respondents' conduct is not willful in the present case. He has submitted that in any event, the violation or disobedience of the injunction order has come to an end and this can be seen from the Affidavit in Sur-Rejoinder. Thus, there is no power of this Court to penalize the Defendants/Respondents in the present case, as the breach of the injunction order has been remedied. He has submitted that Order XXXIX Rule 2A does not provide much latitude to the Court. It empowers the Court, consequent on finding that the injunction order has been breached to attach the property of the person guilty of the breach and also order detention of the such person in civil prison for a term not exceeding three months. This power can only be exercised in order to ensure that there is obedience of the injunction order and ceases with cessation of the act of disobedience.
55. Mr. Andhyarujina has accordingly, submitted that in view of the Respondents obeying the injunction order, the present Application is required to be rejected.
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56. I have considered the rival submissions and I am of the view that in the present case there is nothing but a willful disobedience of the orders of this Court including the exparte ad- interim order dated 30th August 2023 as well as subsequent order dated 21st June 2024. The Respondents have post the said Orders continued, both the manufacturing and selling of the impugned product, through its various distributors and which has gone on post the knowledge of the exparte ad-interim order till as recent as in the second week of July 2024. Thus, in my considered view, such contumacious conduct of the Respondents is to be viewed extremely seriously.
57. In the prior order dated 21st June 2024, this Court had considered the Affidavit dated 10th June, 2024 filed by the Respondents as well as the Affidavits filed by the Applicant which included the 1st and 2nd Additional Affidavits and upon which time was granted to the Respondents to place on record an Affidavit in response to the 1st and 2nd Additional Affidavits.
58. Thereafter, by the subsequent order dated 8th July 2024, this Court had considered the Affidavit dated 2nd July 2024 29/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc read with undertaking and Affidavit of compliance which had been filed and observed that subsequent to the filing of the Affidavit dated 10th June 2024 there had been supply of the impugned Camphor product amounting to Rs. 49,57,861/- as admitted by the Respondents. There was an admission of the Respondent No. 1 that it had supplied the impugned Camphor products post injunction order and as per the statement appended thereto such supplies continued till 24th June 2024. Thus, there was an admission of breach of the injunction order having been committed by the Respondents and hence, this Court had ordered the purging of contempt of the injunction order at that stage by directing deposit of a sum of Rs. 50,00,000/- by the Respondents in the account of the Prothonotary & Senior Master. The Court had further noticed that there has been a persistent breach of the injunction order dated 31st August 2024 by the Respondent No 1, which cannot be tolerated by this Court.
59. Thereafter, the Applicant was permitted to bring on record subsequent documents which they sought to rely upon to contend that there had been subsequent sales after the Respondents furnished of the undertaking to this Court that the said Orders of this Court will be strictly adhered to. Further, the Respondents were 30/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc granted liberty to respond to the same.
60. It is utterly shocking from a perusal of the subsequent documents which have been brought on record in the Affidavit in Rejoinder filed by the Applicant that the Respondents have no regard to the orders of this Court inspite of the undertaking furnished to this Court. There has been willful disobedience of the Orders of this Court during both the periods i.e. the period post the knowledge of the exparte injunction order till the filing of the Affidavit dated 10th June, 2024 as well as the subsequent period. Thus, the contention on behalf of the Respondents that the two periods are to be treated differently and / or that from the second period there is obedience of the injunction order cannot be accepted.
61. It is clear from a consideration of the Affidavit in Rejoinder and Affidavit in Sur-Rejoinder that there were admittedly supplies of the impugned Camphor products after the undertaking furnished to this Court on 2nd July, 2024. This is not only at the "Patanjali Mega Store" at Virar, but also other outlets apart from the offer of the impugned product on the official website of Respondent No. 1 as well as www.pujagoodies.com.
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62. In my considered view, the Respondent No. 10 has been put up by the other Respondents to affirm these Affidavits wherein false statements are made on oath. The Delhi High Court in Pfizer Inc. (supra) has held that false statements made on oath are ex facie unacceptable. The Respondents though stating in the Reply to the Affidavit in Rejoinder that there had been a recall / delisting of the impugned Camphor products and the prior not giving complete effect to the said orders of this Court was due to internal miscommunication and also due to glitch on their website is stated to be rejected. This in view of the same coming from Respondent No. 10 who had filed the earlier Affidavits i.e. dated 10th June 2024, 2nd July 2024 accompanied with Undertaking and Affidavit of compliance. There is a trend of false statements made by the Respondents. It is unfortunate that the Respondent No. 10 is put up for the purpose of filing these Affidavits. Respondent No. 10 is one of the Directors of the Respondent No. 1, whereas the other Directors viz. Respondent Nos. 2 to 9 have remained in the background.
63. I had summoned Respondent No. 10 to remain present in person in Court and it appears that he has been a Director of the Respondent No. 1 only from 31st October 2023. There are 32/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc senior officers / Directors of Respondent No. 1 who must bear collective responsibility for such contumacious conduct and breach of injunction orders passed by this Court.
64. I do not find any merit in the submission of Mr. Andhyarujina that once the injunction order has been obeyed, there is no power of this Court under Order XXXIX Rule 2A to penalize the Defendants for their disobedience of the injunction order in the past. In my view, where there is a willful disobedience of the injunction Order as in the present case, the Court can take cognizance of the same and punish the Respondents, irrespective of whether there is ultimate obeyance of the injunction order. This the Court can do in exercise of its inherent powers under Section 151 of the CPC and such powers would be exercised to uphold the majesty of the Court.
65. In U.C. Surendranath (supra), the Supreme Court had observed that a person is guilty under Order XXXIX Rule 2A of the CPC only where the disobedience is willful and disobedience simpliciter would not invoke Order XXXIX Rule 2A of the CPC. This decision has been relied upon in Bristol - Myers (Supra) which was cited by Mr. Andhyarujina. He had also very fairly referred to the 33/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc subsequent decision of the Supreme Court in Amazon.Com (supra) which noticed that the prior decision in U.C. Surendranath (Supra) where the Supreme Court held that Order XXXIX Rule 2A of the CPC does not require "mere disobedience", but "willful disobedience" is not quite correct and requires to be reviewed by the larger Bench. However, in the present case as I have arrived at a finding that there has in fact been willful disobedience of the injunction order passed by this Court, the difference of view taken by the Supreme Court in the aforementioned decisions will have no bearing on such finding.
66. I also do not find any merit in the submission of Mr. Andhyarujina that the powers exercised by the Court under Order XXXIX Rule 2A of the CPC to punish the Defendant will cease once there is obedience of the injunction order. Such submission will imply that prior willful disobedience will go unpunished. This in my view is not what Order XXXIX Rule 2A of the CPC contemplates. There is always the inherent power of the Court under Section 151 read with Order XXXIX Rule 2A of the CPC which may be invoked and is to be invoked in the present case to punish the Respondents for past willful disobedience of the injunction order irrespective of whether the injunction order is ultimately obeyed as contended. 34/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 :::
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67. The decision of the Karnataka High Court viz. K. Somanath Nayak (supra) relied upon by Mr. Kamod has held that Order XXXIX Rule 2A is required to be read with Section 151 and any violation of Court order by the litigant should be viewed seriously, as the same would affect the fabric of administration of justice by the Court of law.
68. This Court in Cargil India Private Limited (supra) and the Delhi High Court in Pfizer Inc. (supra), decisions which have been relied upon by Mr. Kamod, have considered the powers to be exercised by the Court under Order XXXIX Rule 2A and have held that where there is willful disobedience of orders of the Court as well as false statements made on Affidavit such contumacious conduct is exfacie not acceptable. The Delhi High Court in Pfizer Inc. (supra) has gone on to direct the Defendants - Directors of the company to pay an amount of Rs. 2,00,00,000/- to the Plaintiff for having committed willful contumacious conduct within the meaning of Order XXXIX Rule 2A of the CPC. It was observed in the said decision that the Court is aware of the legal position that detention in civil prison compromises the liberty of the contemnor and is an extreme step, to be taken only where there is no other manner in which the 35/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc contempt could be purged. This decision is apposite in the present case.
69. In the present case, this Court had directed the Respondents to purge the contempt by making payment of the sum of Rs. 50,00,000/- which was in tune with the statement filed by the Defendants of supplies of the impugned product post the exparte ad- interim order.
70. However, given that such statement is woefully inadequate apart from being inaccurate, considering the fact that supplies of the impugned product having continued thereafter, as disclosed in the Affidavit in Rejoinder, the Respondents are required to further purge their contempt of Court within the meaning of Order XXXIX Rule 2A of the CPC.
71. I am of the considered view that the Respondents have committed willful contumacious contempt of this Court within the meaning of Order XXXIX Rule 2A of the CPC. It will serve no purpose to merely detain the Respondent No. 10 in civil prison for false statements made on Affidavit. It is not his brain child for making these false statements as the other Respondents are clearly 36/37 ::: Uploaded on - 09/08/2024 ::: Downloaded on - 14/08/2024 22:24:29 ::: 10-IAL-4586-24-COMIPL-21853-23.doc behind it. Civil imprisonment compromises the liberty of the contemnor and is an extreme step, when there is no other manner in which the contempt could be purged. Thus, it would be more appropriate to penalize the Respondents.
72. In view thereof, the Respondents shall jointly and / or severally pay to the Plaintiff an amount of Rs. 4,00,00,000/- (Rupees Four Crores only) within a period of two weeks from uploading of this order. The Prothonotary and Senior Master is directed to remit the sum of Rs.50,00,000/- deposited by the Respondents in favour of the Plaintiff within the period of two weeks from uploading of this Order.
73. Failure on the part of Respondent Nos.2 to 10 to comply with this Order will result in the Respondents being taken into custody and detained for a period of two weeks in Civil prison viz. Arthur Road Jail, Mumbai.
74. Interim Application is accordingly, disposed of in the aforesaid terms.
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