Calcutta High Court
Glaxo Smith Kline Consumer Health Care ... vs Heinz India Private Limited And Ors. on 27 October, 2006
Equivalent citations: 2007(2)CHN44, AIR 2007 (NOC) 683 (CAL.), 2008 CLC 433 (CAL)
Author: Kalyan Jyoti Sengupta
Bench: Kalyan Jyoti Sengupta
JUDGMENT Kalyan Jyoti Sengupta, J.
1. The above motion has been taken out by the plaintiff for interlocutory relief against the defendants and each of them for appointment of the Receiver for taking possession of the production master copy and the art works of the advertisement material lying with various television channels all across India including respondent Nos. 2, 3 and 4 and to keep the same in his safe custody until disposal of the suit; for an order of injunction restraining the respondents and each of them and their servants, agents and assigns from publishing by telecast or otherwise the advertisement referred to in paragraph 10 of the petition or any publicity similar thereto and in any from reflecting adversely on the plaintiff/petitioner's product 'Horlicks' in any manner whatsoever; an order of injunction restraining the respondent No. 1 and its servants, agents and assigns from publishing any advertisement published in Ananda Bazar Patrika in Annexure 'E1' to the petition and from continuing to telecast or causing to be telecast any further advertisement/publicity similar to or substantially similar to the advertisement mentioned in paragraph 13 and Annexure 'E' containing the composition of 'Brand H' or any brand referring to 'H' directly or indirectly.
2. The above interlocutory reliefs have been claimed for getting decree for perpetual injunction in a suit filed by the plaintiff in the same terms of the interlocutory reliefs and also a decree for special damage quantified at a sum of Rs. 3 crores.
3. Upon reading of the plaint and petition it appears that the plaintiffs action against the first defendant with the help and assistance of the rest of the defendants for illegal puffing of the first defendant's products in the market on the short fact stated hereinafter. Both the plaintiff and the first defendant are engaged in producing and marketing amongst others health drinks and other food products. In the plaint it has been alleged that the plaintiff has been producing and marketing in India as well as in the various parts of the worlds for over a century covering wide range of nutritional and health care products. One of such products is commonly known as Horlicks which has become almost household name to nourish the children in particular and also ailing adults. The plaintiff has acquired tremendous goodwill in the market amongst other all over India particularly in the southern and eastern parts. Yearly turnover of the plaintiffs business is almost 60% of the total turnover of the similar health drinks of other manufacturers. It is claimed that Horlicks is a leading health food drink whose market commands over 50% of the Indian market, 69.2% of the West Bengal market and 53% of the South India market. It is alleged that in the first week of August, 2004 the defendant No. 1 started huge advertisement campaign for its brand Complan principally through TV channels viz. E.TV, ALFA TV and DD-7 by depiction and statements concerning the product of the plaintiff viz. 'H' in order to disparage Horlicks. The advertisement has been telecasted on various channels. Defendant Nos. 2,3 and 4 run along the following lines:
(i) The advertisement starts off by showing a school bus and kids rushing to get in to it. The TV advertisement first shows one school boy laughing, then shows two girls laughing and finally shows all the school children laughing at the attempt of one school by hanging from the central bar in the bus apparently in a desperate bid to gain some height.
(ii) A smart school boy walks upto the boy hanging from the central bar in the bus who is being laughed at and ridiculed by all other school children. He is advised by the smart boy to ask his mother to give him Complan which is necessary for growing up (growing tall).
(iii) Two cups are then projected -- one murky brown cup with 'Brand H' written thereon and the other pure and extra white cup with 'Complan' written thereon. In the background of the TV frame there is a scale shown behind the murky brown cup of Brand H. A white coloured liquid is poured into the Brand H cup while a brown coloured liquid is poured into the white coloured Complan cup. There is a visual depiction of the Complan cup growing in height and becoming almost double the height of the Brand H cup which registers Nil growth.
(iv) While this visual depiction of extra growth is being shown for the Complan cup as compared to the Brand H cup, there is a voice over which strongly and emphatically claims that Complan has 100% more milk protein than Brand H ...23 vital nutrients that give extra growing power.
(v) The advertisement proceeds to show the same boy, who had been previously hanging on the central bar of the bus, laughing and waving his hand. He is asked by the same smart boy as to whether his mother has started giving him Complan. He replies in the affirmative and compares the increase in his height to his friends that he is as tall as his friend. He proudly declares that he too now was a Complan boy.
(vi) The Complan TV advertisement ends on the note 'Complan, extra growing power, enjoyable taste'.
4. It is alleged that by the aforesaid advertisement it has been projected in the mind of the'consumer public at large that the 'H' brand liquid is indicated as Horlicks while 'C' brand liquid is indicative of the Complan. The projection and the pictorial story are definitely disparaging and aiming at to damage reputation and/or are calculating to destroy the plaintiffs market. In fact, it has been alleged while conducting market survey that the demand of the plaintiff's product Horlicks has fallen because of disparaging of the plaintiffs product on one hand and puffing of their product on the other. Such illegal puffing of the product of the first defendant is actionable. At the ad interim stage upon being satisfied prima facie on 3rd September, 2004 the Hon'ble Mr. Justice Subhro Kamal Mukherjee was pleased to pass an order and there had been no appeal preferred against this order. Now question is whether the aforesaid interim order which is still subsisting will continue or not.
5. The affidavit-in-opposition had been filed and in the affidavit-in-opposition it has been stated by the first defendant that puffing up of their product is true and just and it is permissible under the law. Such puffing cannot be actionable as it is not wrong, even if the plaintiff suffers any damages. The advertisement made through television channel as mentioned in the petition is not aiming at to disparage the product of the plaintiff. It is always permissible under the law to advertise by making comparison between two products. A trader can always legitimately offer their products in the market holding out that their product is the best and has got more nutritional value than that of other products. The laudatory statement regarding efficacy of the product of the first defendant is not unfounded rather based on the research work. Upon making research work it was found that the health drink "Complan" offered by the first defendant is more effective for the health and also for growth of the children. So it cannot be termed to be disparaging.
6. Even if it is disparaging or defamatory in the sense as it has been alleged still the first defendant can justify with proof of research work that the plaintiffs product is not as efficacious that of the first defendant.
7. The defendant No. 3 viz. Usudaya Enterprise Limited has filed an affidavit-in-opposition. The sum and substance of the stand taken in their affidavit is that they do not have any hand in preparation of the audio-visual advertisement which was done in this case by the respondent No.l. However, the officials of the respondent No.3 scrutinized with due diligence and reasonable care to ensure that the said advertisement material which is sought to be aired is not objectionable or per se defamatory or prejudicial to the interest of the public in general. The said advertisement was aired as per agreed schedule by the respondent No. 3 through its various channels including E-TV Bangla. It has further been alleged that there is no justification to implicate the respondent No. 3 in this suit or in the proceedings as such interim order already passed affecting the respondent is unjustified and unwarranted. The order already passed is causing immense damage to the reputation of the respondent No. 3.
8. Apart from the aforesaid two defendants no other defendant has filed any affidavit either to support the said petition or to oppose the same.
9. Mr. Anindya Kumar Mitra, Senior Advocate, appearing with Mr. S. P. Sarkar, Senior Advocate in support of this Motion, submits highlighting the fact stated in the petition that the clear message intended and sought to be conveyed by all the defendants particularly the defendant No. 1 to all the viewers through the said advertisement is that first defendant's product, Complan containing milk protein and 23 other nutrients has the potential for growth of the children while plaintiffs product Horlicks has none. This negative message has come out in a most deliberate fashion in the final frames of the storyboard by showing the cup representing Complan visually grows taller while the second cup remains same as in the earlier frames in the storyboard. Similarly it is also depicted that the shorter boy who was previously drinking Horlicks and was not growing is also growing taller after he switches over to the Complan and becomes a Complan boy. The defendant has indulged in comparative advertisement showing two cups. One cup growing taller with pouring of Complan and the other cup with the pouring of liquid of the colour of Horlicks into it has no growth at all. The disparagements is subtle and very effective. It is more effective than that Horlicks which has no growth factor for children.
10. The mode of advertisement and publicity has undergone radical change in 19th Century. The publicity through pamphlets and newspapers was confined to readers. Now-a-days, advertisements through electronic media are aired and viewed by the customers. The pictorial depiction is made through TV channels. Huge amount has been spent by the manufacturers of the consumer goods for advertisement through electronic media. As far as legal position is concerned, he submits the views expressed by the learned Judge in 19th Century in the context of mode of advertisement is to be adjusted to the present situation at the 21th Century. The impact of telecast of advertisement is much greater than advertisement through pamphlets. According to him, the proposition of law laid down in the judgement of White v. Mellin reported in 1895 AC 154, is not helpful in the case of disparagement made through electronic media. He submits further that the defendant can legitimately make puff that the Complan contributes most to the growth of the children. But for this trend of puffing it was not necessary to introduce second cup in the telecast advertisement and make pictorial comparison as has been done in this case. The defendant has exceeded the legitimate limit of puffing and has disparaged his rival goods by giving a clear audio-visual impression that the health drink poured into the second cup 'H' does not help for the growth of children at all. This is a negative advertisement patently aimed at degrading Horlicks. The second cup in the advertisement refers to Horlicks and the said advertisement has the effect of undermining without ascertaining message that Horlicks has potential of growth which is clearly borne out from the survey conducted by Indian Market and Research Bureau. Puffing is always allowed, he contends, under law provided, however, no false representation as to the quality and character of the rival goods is made. The disparagement of the plaintiffs goods in comparison to Complan as health drink has no potential for growth which is actually false. The fact of the matter is that milk protein and for that matter protein as a whole is not only the factor which contributes to the growth of the children. Various other factors such as genetic potential micro nutrients, physical training and other environmental circumstances can contribute equally if not more for the growth of the children. This would appear from the various reports published and survey conducted by the leading authorities and organizations specialized in this field such as World Health Organization, UNICEF etc. In contrast, through various supporting documents annexed to the petition he urges that the defendant No. 1 has not produced even a prima facie evidence in support of his innuendo that Horlicks is a health drink and has growth potential for children. He further submits by reason of disparaging advertisement that the plaintiff has been affected in its business. The plaintiff has also suffered special damage, and such suffering is corroborated by a market survey carried out by Indian Market Research Bureau.
11. Thus, it is prima facie established strongly that the plaintiffs product is illegally slandered and as such the same is actionable. On being satisfied with the prima facie case at the ad interim stage this Court was pleased to grant order in terms of Prayer 'b' of the petition. In spite of the aforesaid order the defendants continued to use advertisement with the second cup but deleting the word 'H' from the second cup. In the contempt application it was contended by the defendants that they understood the ad interim order that they were not prohibited from showing second cup of advertisement but was restrained only from using the second cup with the word 'H'. However, this pretended misunderstanding was cleared by the Hon'ble Judge while entertaining contempt application. Under those circumstances, none of the defendants has been able to put forward any defence to justify their illegal puffing. Therefore, the interim order already passed shall be confirmed.
12. Mr. Sudipta Sarkar, ld. Senior Advocate, while appearing for the defendant No. 1 drawing my attention to the factual aspect stated in his client's affidavit submits that it is settled position of law that a manufacturer or trader is entitled to advertise his product. The puffing of product can legitimately be made stating amongst other that his product is better than rival in some respects. In support of his legal contention he has relied on the following decisions viz. (i) White v. Mellin reported in 1895 AC 154, (ii) Reckitt and Colman of India Ltd. v. M.P. Ramchandran and Anr. reported in 1999 (19) PTC 741, (iii) Reckitt and Colman of India Ltd. v. Kiwi T.T.K. Ltd. reported in 1996 (16) PTC 393(Del), (iv) Pepsico Inc. and Anr. v. Hindustan Coca Cola and Ors. reported in 2001 (21) PTC 699 (Del), (v) De Beers Abrasive v. International General Electric Co. reported in 1975 (2) All ER 599 at page 604 and (vi) Colgate Palmolive (India) Ltd. v. Hindustan Lever Ltd. , paragraphs 36 to 37. He submits that quoting the words of Lord Diplock in the case reported in 1980 RPC 93 and 94 that the advertisements are not affidavit; the exaggerated claim by a trader about the quality of his wares ascertaining than those of his rivals even though he knows this to be untrue but that has been permitted by the common law to be venial puffing which gives cause of action to a competitor even though he can show that he had suffered actual damage in his business as a result. Thus, advertisement does not give rise any cause of action unless it can be shown that a reasonable consumer is taking them seriously. The aforesaid proposition of law has also been approved and accepted by the Courts of our country.
13. He further submits that a trader or manufacturer is entitled to make commendatory or laudatory statements about his product. Such statements are taken by the consumer as mere initiation to or puffing unless the same is in the nature of warranty. In this connection he has relied on a decision of the Supreme Court reported in 1999(7) SCC 1.
14. While coming to the factual aspect of the matter in this case he contends that if the entire advertisement is observed and the storyboard is watched properly then it will appear that there is no comparison either favourably or adversely between the product of the plaintiff and the first defendant. The first defendant through the said advertisement has never tried to show visually that Horlicks is bad or detrimental to health or otherwise detrimental. It has simply been shown and said that its product is better than the product contained in the cup with the letter 'H' and it is better nutritional because it contains 100% more milk protein. Thus, there is no question of any disparagement by innuendo that advertisement has not shown as sought to be made on argument. Since there is absence of disparagement of the concerning goods of the plaintiff the plaintiff has no cause of action against the defendant No. 1 or the respondent No. 1. In addition, Horlicks does not disclose the protein contained in their Indian pack. Complan advertisement emphasizes the nature of the protein contained therein, and nowhere the advertisement states that only because of milk protein growth is possible. In the absence of any adverse remark of the plaintiffs product specially when the plaintiff itself is not declining that there cannot be any disparagement of the plaintiffs product. He further submits that from the tenor of the said advertisement any reasonable person will believe that the same is advertisement puff where one manufacturer or trader lauds his goods vis-a-vis another and no ill remark is written about the other manufacturer or trader of goods. No reasonable person would take the reasons.
15. In his alternative argument he contends that in the event this Hon'ble Court holds that as there is prima facie disparagement or defamation of the goods of the plaintiff by the first respondent the Court should ask for justification. If justification is established, no order of injunction can be passed. The respondent No. 1 can justify its statement that the product contained 100% more milk protein than Horlicks vide report of ANA laboratories annexed in Annexure 'F page 64 to the affidavit-in-opposition. Therefore, he concludes that earlier order of injunction should be vacated.
16. The learned Counsel appearing for the respondent No. 4 contends that the disputed advertisement of the product of the respondent No. 1 was conceived and prepared by the defendant No. 1 and/or its advertisement agency and it has no other role to play with regard to such advertisement.
The disputed advertisement of the product of the respondent No. 1 was booked and telecast in different channels including the channel ALFA Bangla (presently known as Zee Bangla) owned by the respondent No. 4 at the behest and as per specific instruction of respondent No. 12. The respondent No. 4 had no role to play with regard to the preparation of the disputed advertisement. It is not possible for the respondent No. 4 to ascertain whether any particular advertisement of a product of a particular manufacturer disparages a similar product of a different manufacturer as because the respondent No. 4 does not have the machinery and/or skilled manpower to analyze such advertisement to be telecast in the ALFA Bangla channel. In deference to the order dated 3rd September, 2004 of this Court the respondent No. 4 has stopped telecasting of the said disputed advertisement containing disparaging remarks about the product of the petitioner. If in future similar or substantially similar advertisement comes to the respondent No. 4 for telecasting it would not be possible for the respondent No. 4 to ascertain whether such advertisement contains any disparaging remark against the petitioner's product due to the reasons already indicated in the paragraph 5 hereinabove. It is submitted by the learned Counsel for the respondent No. 4 that if an injunction is granted or order in terms of Prayer 'b' of the injunction petition is passed the same may be restricted to the respondent No. 1 and such order of injunction may not be granted as against the respondent No. 4. Even it will appear from the injunction petition that the allegation, grievance and/or cause of action disclosed in the petition is against the petitioner but not against the respondent No. 1. Therefore, the interim order already passed by this Court shall be vacated.
17. The facts stated in the pleadings and the arguments advanced by the respective learned Counsels for the parties have occupied my attention on being heard them. At this stage whether the interim order already subsisting is to be confirmed by this Court or not is the precise question. In the written notes of argument, the plaintiff made it clear that for the time being it does not press for other relief except as above. The Hon'ble Mr. Justice Subhro Kamal Mukherjee at the ad interim stage had found on the basis of the averment made in the petition and plaint that prima facie case has been made out against the defendants by the plaintiff to get an interim relief in terms of Prayer 'b'. His Lordship was pleased to weigh balance of convenience and inconvenience while granting such relief. It is now for the defendants and each of them to make out their case justifying vacating of interim order. Upon reading of the pleadings of all the parties it is plain to me admittedly that the first defendant with the help of the rest of the defendants has puffed up their product disparaging the product of the plaintiff until it was restrained by this Court. It is also admitted position that the plaintiffs case is based on the common law right as protection against the illegal puffing up is not codified as yet in our country. In the trade or commerce legitimate passing off as well as puffing up are very common and permissible amongst the rival and/or competing traders. In the trade or commerce it is quite usual that every trader will try to attack the attention of the customers to their product for its sale eliminating the competitor or rival from the market. This elimination exercise is in my view done in two difficult ways -- one is puffing, another is passing off. Passing off is a positive action of the trader to imitate the reputed product in order to introduce or to augment sale of its product exploiting illegally goodwill and reputation of the product having established goodwill in the market, and simultaneously to reduce the market of rival; while puffing up is an action by the traders in a negative way to adopt such measure and tricks so that the competing, even reputed trader cannot stay in the market and to occupy the position in the market enjoyed by the competing counter part. We are not dealing with the passing off here. Puffing is the subject-matter here. Before I examine the respective cases on fact made out by the parties as well as the legal argument advanced by them I feel it appropriate to record the settled position in the law where action against puffing up is entertainable by the Law Court. The English Court and the Courts in our country have consistently laid down where and to what extent puffing up is permissible and where such puffing up is to be stopped:
(i) A tradesman is entitled to declare his goods to be best in the worlds, even though the declaration is untrue;
(ii) He can also say that my goods are better than his competitors', even though such statement is untrue;
(iii) For the purpose of saying that his goods are the best in the world or his goods are better than his competitors' he can even compare the advantages of his goods over the goods of others;
(iv) He, however, cannot while saying his goods are better than his competitors', say that his competitors' goods are bad. If he says so he really slanders the goods of his competitors. In other words, he defames his competitors and their goods, which is not permissible;
(v) If there is no defamation of the goods or to the manufacturers of such goods no action lies but if there is such defamation an action lies and if an action lies for recovery of damages for defamation, then the Court is also competent to grant an order of injunction restraining the repetition of such defamation.
18. In other words, while puffing up and/or self-lauding his product a trader cannot disparage the goods of others in any manner whatsoever.
19. Mr. Sudipta Sarkar, learned Counsel, says that disparaging statement and/or defamation of the plaintiffs product by his client is permissible if it is established that such defamation is justified on the general law of defamation (slander). In my view in case of puffing defamation even if having justification, is not permissible at least at the interlocutory stage. Whether a product is good or bad quality cannot, in my view, be judged by any competitor traders; this can only be judged by the consumers at large. Obviously whether it is fruitful or harmful to the human body the consumer will react either accepting or rejecting the product. It is the consumer producer who can and/or, defame with justification, as they are affected persons. The competitor trader cannot take the role of social reformer to point out, even if truly, whether a product of a competitor trader is bad. Bad product is always rejected either sooner or later by the consumer, and the supplier and/or manufacturer of the bad product on being rejected automatically disappears from the market for which no effort for defamation justifiedly or unjustifiedly is required. That is why puffing up and/or laudation of the product by a trader has not been allowed by the Law Courts absolutely and without restriction. The trader must remain within the legitimately permissible limit in puffing up of its product. In an old English decision (Timothy White v. Gustaph Melliri) the House of Lords has settled as a statement of law in case of slander of goods by rival trader that the plaintiff has to establish that amongst others it is a disparagement of one man's goods. To say that they are inferior to the goods of other; but such a statement cannot be the ground of a claim for the damage and/or claim for injunction. If, however, there had been an imputation or intentional misrepresentation for the purpose of misleading purchaser that the competitors' products are bad and injurious to health then and only then such disparagement is an actionable wrong.
20. Taking note of the above decision learned Single Judge of this Court in case of Reckitt and Colman of India Ltd. v. M.P. Ramchandran and Anr. reported in 1999(19) PTC 741, has held amongst others that a trader can also base on relative advantage of the old product over the other products available in the market. He can also say that technology in the products available in the market has become old or obsolete. He can further add that new technology available for him is far superior to the known technology but he cannot say that the known technology is bad and harmful. What he can claim is that his product and technology are superior. He cannot, however, while so comparing, say that the available technology and product made are bad and harmful.
21. In that case factually the learned Judge found that the defendant illegally disparaged and/or defamed the product of the plaintiff with necessary implication which can be perceived by the ordinary customers. As a result of such disparagement and/or defamation of the plaintiffs product the learned Judge found that plaintiff thereinprima facie established the case of damage, and interim order of injunction accordingly was granted.
22. Learned Judge of the Delhi High Court in case of Pepsico Inc. and Anr. v. Hindustan Coca Cola and Ors. reported in 2001(21) PTC 699(Del) while dealing with combined case of passing off and puffing up considered large number of cases including the judgment of the learned Single Judge of this Court and also the aforesaid English case, and has accepted in principle the aforesaid proposition of the law. However, in fact the learned Judge did not find that there has been any disparaging statement in that case. So relief was not granted.
23. Therefore, it is now legally clear that a plaintiff can maintain an action against slandering of its product if it is found to be illegal disparagement and has been able to establish suffering of the loss and damages. But in order to get an interim relief apart from making out prima facie case the balance of convenience and inconvenience has also to be shown. Here in the context of the aforesaid proposition of law this Court has now to examine how far the plaintiff has been able to make out a case of illegal disparagement of its product. In the plaint, with the necessary documents it appears to me that first defendant has tried to laud its own product not only by way of a comparison, from the nutritional point of view, with the product of the plaintiff but has also tried to make an efficacious distinction between the two products in a slanderous way. Whether milk protein is the only source of growth of children or for that matter whether protein is the sole contributory factor to the growth and further whether the milk is only source of protein, are wholly disputed question of fact in highly expertised field and the same cannot be established unless evidence with expert opinion and scientific analysis are produced before the Court. Of course both the parties with bare reports have tried to do so with mere report and counter-report, but these need scrutiny at the time of the trial in witness action. For the time being this Court is to examine only the prima facie case and balance of convenience. The storyboard prepared and projected in the TV advertisement which has been aired and is sought to be aired through TV channels conducted and maintained by the respondent Nos. 2,3 and 4 clearly show that the product of the plaintiff is sought to be projected in the mind of the consumer as inferior in quality and does not supply the adequate quantity of protein and other nutrition to help the growth of the children. The comparison is sought to be made in the storyboard by pouring two liquids one of brown colour which is also the colour of the product of the defendant No. 1 in a white cup of the same size and another liquid of white colour which is also the colour of the product of the plaintiff being poured in a murky brown cup of equal size with an indication of the alphabet 'H'. The plaintiff has given particulars and list of the health drinks and from the list it appears to the Court as has been rightly contended by Mr. Mitra appearing for the plaintiff, that there is no drink as above which is relatable to the letter 'H'. Therefore, the comparing liquid is sought to be indicated and/or attributed to the plaintiffs product, "Horlicks". Just the presumption of the Court or that of the learned Counsel for the plaintiff is not enough to come to the conclusion that alphabet 'H' denotes the plaintiffs product Horlicks. Some materials are required to prove the same. The plaintiff has prima facie produced the documents viz. the report of the market survey by expert body. This report in no certain terms has said that every consumer public at large who was the regular customer of the Horlicks and for that matter other consumer has got the clear impression of the letter 'H' and the storyboard projecting comparison have been directly relatable to Horlicks. Even by use of the letter 'X' in place of letter 'H' in the same manner of comparison the mind and the impression of the consumer has not been changed. The comparison is not harmful but when it is shown and when the storyboard tells the consumer at the same time that the product of the plaintiff does not help to register growth of the children whereas use of the product of the first defendant register the significant growth. It is, thus, clear that the product of the plaintiff is sought to be projected by the aforesaid storyboard as well as statement are certainly nothing short of a case of inferiority.
24. While accepting the above statement of law that has firmly been settled consistently by judicial pronouncements I find that the plaintiff has been able to make out a prima facie case of actionable slander.
25. Now, it has to be considered the balance of convenience or inconvenience. While doing so I consider comparative business position of both the parties. The statement and averment made in the plaint and in the petition with the supporting document viz. the report of the expert body upon market survey register fall of sale significantly, of the plaintiffs product because of the aforesaid impression In fact, the traditional customers in eastern region as well as in Tamil Nadu have already shifted their fondness hi favour of the Complan.
26. According to me, if the order of injunction is allowed to continue there is no loss of the first defendant, whereas the plaintiff will continue to suffer loss if this order of injunctions is vacated and the advertisement through TV channel or otherwise is allowed to be published in the same way.
27. Under such circumstances, I do not find any justification going by the case made out prima facie by the first defendant to vacate interim order. The argument advanced on behalf of the respondent No. 4 is that this order of injunction should not be operative as against it, is not simply acceptable for what it can not be allowed to be done directly and cannot be permitted to be done indirectly. If other defendants are not bound by this interim order of injunction offending advertisement will then be telecast, consequently the first defendant will get the benefit of the wrong through the TV channels' owners. Order of the Court are always meaningful and objective and it shall not be allowed to be frustrated by artful design. I, therefore, confirm interim order already passed by this Court till the disposal of the suit.
28. Thus, the application is disposed of.
29. Urgent xerox certified copy of the judgment be made available to the parties, if applied for, upon compliance of all requisite formalities.