Delhi High Court - Orders
Welspun India Limited Through Its ... vs Laxmi Narain Kaushik & Ors on 9 April, 2024
Author: Prateek Jalan
Bench: Prateek Jalan
$~39
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 560/2023, I.A. 1242/2024 & I.A. 5039/2024
WELSPUN INDIA LIMITED THROUGH
ITS AUTHORIZED SIGNATORY & ANR. ..... Plaintiffs
Through: Mr. Rajiv Nayar, Senior Advocate
with Mr. Kirat Singh Nagra, Mr.
Kartik Yadav, Mr. Parinay T.
Vasandani & Mr. Vardaan
Wanchoo, Advocates. [M:-
9999800117]
versus
LAXMI NARAIN KAUSHIK & ORS. ..... Defendants
Through: Mr. M.M. Sharma & Mr. Ankit
Singh Rajput, Advocates for D-1.
Mr. Deepak Gogia, Advocate for
D-2.
CORAM:
HON'BLE MR. JUSTICE PRATEEK JALAN
ORDER
% 09.04.2024 I.A. 17582/2023 (Application under Order XXXIX Rules 1 and 2 on behalf of the plaintiff for ex-parte ad interim junction), I.A. 20660/2023 (Application under Order XXXIX Rule 4 for setting aside of ex-parte ad interim injunction order dated 13.09.2023)
1. The present suit has been filed alleging defamatory publications by the defendant in respect of the plaintiffs and their products. I.A. 17582/2023 is an application for interlocutory injunction restraining defendant No.1 from publishing such content.
CS(OS) 560/2023 Page 1 of 9This 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 11/04/2024 at 03:32:55
2. The Court, by an order dated 13.09.2023, granted an ex-parte ad interim injunction restraining defendant No.1 from directly or indirectly publishing, disseminating, communicating any content about the plaintiffs or their products, which is similar to the allegations contained in paragraphs 27, 29, 30 and 31 of the plaint.
3. Defendant No.1 has filed I.A. 20660/2023 under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 for vacation of the ex-parte ad interim order.
4. The impugned publications were made by an organisation by the name of Textile Consumer Foundation, which is not a party to the suit. It is the contention of the plaintiffs that defendant No. 1 is/was at the material time, President of the Textile Consumer Foundation and was in any event, responsible for the publications. This allegation is denied by defendant No.1. It is stated by Mr. M.M. Sharma, learned counsel for defendant No.1, that defendant No.1 is not responsible for the publications mentioned in paragraphs 27, 29, 30 and 31 of the plaint.
5. Without prejudice to the rights and contentions of the parties in the suit, Mr. Rajiv Nayar, learned Senior Counsel for the plaintiffs and Mr. Sharma, learned counsel for defendant No.1, have arrived at a consensus, on the basis of which these applications can be disposed of. The consensus is in the following terms:-
a. Defendant No.1 undertakes not to make any publication directly or indirectly about the plaintiffs and their products, except to statutory authorities or regulators in any jurisdiction, in accordance with law. b. In the event any such complaints are made by defendant No.1, the plaintiffs will be entitled to raise their contentions and defences in CS(OS) 560/2023 Page 2 of 9 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 11/04/2024 at 03:32:55 accordance with law.
c. This order is without prejudice to the rights and contentions of the parties in any other pending litigation. This Court has made no comment on the merits thereof.
6. It is made clear that these directions are intended to decide the interlocutory applications and will not prejudice the rights and contentions of the parties in the suit.
7. The applications are disposed of in the aforesaid terms. I.A. 918/2024(Application on behalf of the defendant No. 1, under Order VII Rule 10 seeking return of plaint)
1. This is an application by defendant No.1, under Order VII Rule 10 of the Code of Civil Procedure, 1908 ["CPC"] for rejection of the plaint on the ground that this Court lacks territorial jurisdiction.
2. Mr. Sharma, learned counsel for defendant No.1 submits that the plaintiffs have their registered offices in Mumbai, whereas defendant No. 1 resides in Nagpur. He argues that this Court therefore lacks territorial jurisdiction to entertain this suit. He additionally submits that similar litigation between the parties is pending in the District Court, Nagpur, and therefore also takes a plea under Section 10 of CPC and on the basis of the doctrine of forum non conveniens.
3. For the purposes of the present application, the Court has to go by the contents of the plaint and documents filed therewith. The defence cannot be considered at this stage. This legal position has been discussed by a coordinate bench of this Court in Nisha and Another vs. Vikram Singh and Another (2023) SCC OnLine Del 4723.
4. In paragraph 27 of the plaint, the plaintiffs has alleged as follows:
CS(OS) 560/2023 Page 3 of 9This 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 11/04/2024 at 03:32:55 "27. The relevant extracts of the offending/defamatory content of the communication sent by the Defendant No. 1 through its alleged NGO are reproduced hereinunder:
"S.No. Entity Date Defamatory Content
1. Rajkamal Emporium, 21.08.2023 4) It has been brought to Karol Bagh, New Delhi our knowledge that many of these claims are false and misleading. If found true, you are hand in glove in promoting and selling a fake/false product to customers in your area. Hope you have done proper due diligence before selling these products.
***
6) Kindly confirm that
performance claims on
these Registered
trademark
HYGROCOTTON®
products do have unique
and revolutionary
Hollow core in the yarn
throughout the length,
created by
implementation of
Patented Proprietary
spinning technology (US
Pat. No. 8733075), bed
sheets regulating
temperature etc. are
true & have been
personally verified by
you or are substantiated
& backed by proper
research or are
accepted &
authenticated labs
recognized by
government of India.
7) Hope to hear from
you within next 7 days
so that we can evaluate
CS(OS) 560/2023 Page 4 of 9
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 11/04/2024 at 03:32:56 or you as a consumer friendly and law compliant retailer failing which we may assume that you are hand in glow with concerned seller in cheating and deceiving the consumers in India.
2. Samsono Sales Pvt. Ltd. 21.08.2023 "4) It has been brought Karol Bagh, New Delhi to our knowledge that many of these claims are false and misleading. If found true, you are hand in glove in promoting and selling a fake/false product to customers in your area.
Hope you have
done proper due
diligence before selling
these products.
***
6) Kindly confirm that
performance claims on
these Registered
trademark
HYGROCOTTON®
products do have unique
and revolutionary
Hollow core in the yarn
throughout the length,
created by
implementation of
Patented Proprietary
spinning technology (US
Pat. No. 8733075), bed
sheets regulating
temperature etc. are
true & have been
personally verified by
you or are substantiated
& backed by proper
research or are
CS(OS) 560/2023 Page 5 of 9
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 11/04/2024 at 03:32:56 accepted & authenticated labs recognized by government of India.
7) Hope to hear from
you within next 7 days
so that we can evaluate
or you as a consumer
friendly and law
compliant retailer
failing which we may
assume that you are
hand in glow
with concerned seller in
cheating and deceiving
the consumers in India.
3. Haryana Handloom 21.08.2023 "4) It has been brought
House, Khan Market, to our knowledge that
New Delhi many of these claims
are false and
misleading. If found
true, you are hand in
glove in promoting and
selling a fake/false
product to
customers in your area.
Hope you have
done proper due
diligence before selling
these products.
***
6) Kindly confirm that
performance claims on
these Registered
trademark
HYGROCOTTON®
products do have unique
and revolutionary
Hollow core in the yarn
throughout the length,
created by
implementation of
Patented Proprietary
spinning technology (US
Pat. No. 8733075), bed
CS(OS) 560/2023 Page 6 of 9
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 11/04/2024 at 03:32:56 sheets regulating temperature etc. are true & have been personally verified by you or are substantiated & backed by proper research or are accepted & authenticated labs recognized by Registered trademark HYGROCOTTON® products do have unique and revolutionary Hollow core in the yarn throughout the length, created by implementation of Patented Proprietary spinning technology (US Pat. No. 8733075), bed sheets regulating temperature etc. are true & have been personally verified by you or are substantiated & backed by proper research or are accepted & authenticated labs recognized by government of India.
7) Hope to hear from you within next 7 days so that we can evaluate or you as a consumer friendly and law compliant retailer failing which we may assume that you are hand in glow with concerned seller in cheating and deceiving the consumers in India."
CS(OS) 560/2023 Page 7 of 9This 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 11/04/2024 at 03:32:56
5. In an action for defamation, the plaintiffs can file a suit in the place where the alleged defamatory statement is published, i.e. where it is conveyed by the defendant to any other person(s). This question is addressed as follows in the judgement of a coordinate bench of this Court in Frank Finn Management vs. Subhash Motwani and Anr. 2008 (106) DRJ 921:
"17. The wrong within the meaning of Section 19 of the CPC in an action for defamation is done by the publication. The defendants are confusing publication in the sense of printing, with publication as in the case of libel. The publication in the sense of a libel is not the mechanical act of printing of the magazine but is of communication of the libelous article to at least one person other than the plaintiff or the defendant. In this regard also see Aley Ahmed Abdi v. Tribhuvan Nath Seth, 1979 All. LJ 542. If the magazine, as aforesaid, has a circulation at Delhi, then it cannot be said that the wrong would not be done to the plaintiff at Delhi and thus the courts at Delhi would have jurisdiction under Section 19 of the Act. A Division Bench in T.N.S. eshan v. All India Dravida Munnetira Kazahagam, 1996 AIHC 4283 (AP) has taken the same view. Even if the test of Section 20 of the CPC were to be applied, even then the cause of action in part at least would accrue in Delhi. A Single Judge of the High Court of Bombay in the The State of Maharashtra v. Sarvodaya Industries, AIR 1975 Bombay 197 has held that the phrase wrong done in Section 19 would clearly take in not only the initial action complained of but its result and effect also and Section 19 is wide enough to take in those places where the plaintiff actually suffered the loss because of the alleged wrongful act. It was further held that the court within whose local jurisdiction damage was caused or suffered or sustained, would clearly answer the requirements of Section 19 for the purposes of the suits mentioned therein. I respectfully concur with the said view and unless Section 19 of the CPC is so interpreted, the purpose thereof would be defeated. Similarly, State of Meghalaya v. Jyotsna Das, AIR 1991 Gauhati 96 also held that wrong done includes and covers the effect of the act. The counsel for the defendants has relied upon Rashtriya Mahila Kosh v. The Dale View, 2007 IV AD (Delhi) 593 : 2007 (95) DRJ 418 to address the principle of forum non conveniens. With respect, if under the CPC the court has jurisdiction, I find it hard to hold that on the doctrine in international law of forum non conveniens the plaintiff can be non suited. I, therefore, decide issue No. 1 in favour of the plaintiff and against the defendants."CS(OS) 560/2023 Page 8 of 9
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 11/04/2024 at 03:32:56
6. In view of the aforesaid legal position, and the specific plea of the plaintiffs, that such communications were made by defendant No.1 inter alia to dealers of plaintiffs within the jurisdiction of this Court, part of the cause of action, as pleaded in the plaint, does arise within the jurisdiction of this Court.
7. As the present application has been filed under Order VII Rule 10 of CPC, alleging lack of territorial jurisdiction, the contention raised under Section 10 of CPC does arise for adjudication in this application.
8. The application is therefore dismissed, leaving the question open for adjudication at the stage of trial, if required. CS(OS) 560/2023
1. List the suit and other application before the learned Joint Registrar on 03.05.2024 for completion of pleadings, admission/denial of documents and marking of exhibits.
2. List before the Court on 23.09.2024.
PRATEEK JALAN, J APRIL 9, 2024 'pv'/ CS(OS) 560/2023 Page 9 of 9 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 11/04/2024 at 03:32:56