Madras High Court
Reckitt Benckiser (India) Private ... vs Itc Limited on 15 December, 2021
Author: M.N.Bhandari
Bench: Munishwar Nath Bhandari, P.D.Audikesavalu
O.S.A.(CAD) Nos.132 to 134 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.12.2021
CORAM :
THE HON'BLE MR.MUNISHWAR NATH BHANDARI,
ACTING CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE P.D.AUDIKESAVALU
O.S.A. (CAD) Nos.132 to 134 of 2021
Reckitt Benckiser (India) Private Limited
having its registered office at
Plot No.48, Institutional Area
Sector 32, Haryana - 122 001. .. Appellant
Vs
ITC Limited
rep. by its Constituted Attorney, P.Ramkumar
ITC Centre, 4th Floor
760, Anna Salai
Chennai - 600 002. .. Respondent
Prayer: Appeals under Section 13 of the Commercial Courts Act, 2015
against the order dated 25.11.2021 passed in Application No.3839 of
2021 in O.A.No.554 of 2021 in C.S.(Comm. Div.) No.55 of 2021;
Application No.3841 of 2021 in O.A.No.556 of 2021 in C.S.(Comm.
Div.) No.55 of 2021; and Application No.3840 of 2021 in O.A.No.555
of 2021 in C.S.(Comm. Div.) No.55 of 2021.
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O.S.A.(CAD) Nos.132 to 134 of 2021
For the Appellant : Mr.Satish Parasaran
Senior Counsel
for Mr.R.Saravanakumar
For the Respondent : Mr.C.Manishankar
Senior Counsel
for Mr.Arun C.Mohan
COMMON JUDGMENT
(Delivered by the Hon'ble Acting Chief Justice) By these appeals a challenge is made to the order dated 25.11.2021, whereby costs of Rs.1 lakh was imposed on the appellant, with a direction for payment on or before 8.12.2021.
2. Learned Senior Counsel for the appellant submits that pursuant to the suit preferred by the plaintiff/non-appellant, an order of injunction was passed on 6.10.2021. The appellant had taken immediate steps in compliance of the said order, yet applications were filed by the plaintiff/non-appellant invoking the jurisdiction under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (for brevity, "the CPC") alleging disobedience and ____________ Page 2 of 10 https://www.mhc.tn.gov.in/judis O.S.A.(CAD) Nos.132 to 134 of 2021 breach of the order dated 6.10.2021. The learned Single Judge, after considering the facts of the case, found no deliberate or intentional flouting of the order so as to detain the appellant in the civil prison as provided under Order XXXIX Rule 2A of the CPC. The learned Single Judge yet imposed costs of Rs.1 lakh on the appellant, though not provided under Order XXXIX Rule 2A of the CPC.
3. Learned Senior Counsel for the appellant further submits that the appellant had given proper explanation for its conduct. It is stated that immediately after the injunction order was passed by the learned Single Judge, the appellant issued instructions to all concerned not to telecast the advertisement under restrain. Despite said communication, three television channels telecast the advertisement on different dates and on knowing about it, emails were sent requesting them not to telecast the advertisement under restrain and thereupon even those three television channels did not telecast the advertisement. The television channels had submitted their explanation to the effect that the telecast was due to technical ____________ Page 3 of 10 https://www.mhc.tn.gov.in/judis O.S.A.(CAD) Nos.132 to 134 of 2021 error. Thus, the court below recorded its opinion that the action of the appellant herein was not deliberate or intentional to flout the order of injunction dated 6.10.2021. Once the finding to this effect was recorded, there was no occasion for the court to proceed further and impose costs. It is more so when Order XXXIX Rule 2A does not provide for imposition of costs. Thus, the impugned order has been passed well beyond the power conferred under Order XXXIX Rule 2A and, therefore, deserves to be set aside.
4. Learned Senior Counsel for the plaintiff/non-appellant submits that despite grant of an order of injunction restraining the appellant, its management, members, affiliates, directors, servants, officers, employees, representatives, agents and all other persons claiming under them or acting in concert with them or on their behalf or acting on their instructions from telecasting, broadcasting, publishing, disseminating or otherwise communicating to the public in any manner the advertisement, the appellant did not take immediate steps to ensure compliance of the injunction order and, therefore, the plaintiff/non-appellant filed applications under Order ____________ Page 4 of 10 https://www.mhc.tn.gov.in/judis O.S.A.(CAD) Nos.132 to 134 of 2021 XXXIX Rule 2A of the CPC alleging violation of the injunction order, as the advertisement was telecast from time to time in three different television channels at the instance of the appellant. It is proved by the emails sent by the appellant. Thus, the learned Single Judge was right in holding that there was slackness on the part of the appellant in implementing the restraint order and was justified in imposition of the costs of Rs.1 lakh. The prayer is made to maintain the order and thereby dismiss the appeals.
5. We have considered the rival submissions of the parties and perused the records.
6. The operative portion of the order dated 6.10.2021 granting interim injunction in favour of the plaintiff/non-appellant is quoted hereunder for ready reference:
"38. Hence, interim injunction granted restraining the respondent, their management, members, affiliates, directors, servants, officers, employees, representatives, agents and all other persons claiming under them or acting in concert with them ____________ Page 5 of 10 https://www.mhc.tn.gov.in/judis O.S.A.(CAD) Nos.132 to 134 of 2021 or on their behalf or acting on their instructions from telecasting, broadcasting, publishing, disseminating or otherwise communicating to the public in any manner, the impugned advertisement carrying the storyboard or any part thereof extracted in paragraph No.19 of this order. The respondent/defendant is hereby directed to withdraw/stop forthwith from displaying the impugned advertisement through any mode, in any manner and in any language."
7. The injunction order was passed against the appellant company, namely, Reckitt Benckiser (India) Private Limited. It is not in dispute that despite the injunction order the advertisement was telecast in three television channels named in the impugned order. The learned Single Judge, after taking note of the fact that the appellant immediately requested the three television channels not to telecast the advertisement and even asked for their response, opined that the act of the appellant was not intentional or deliberate to flout the order of injunction dated 6.10.2021. The court below also took note of the response of the television channels that the advertisement was telecast on few days due to technical error. The ____________ Page 6 of 10 https://www.mhc.tn.gov.in/judis O.S.A.(CAD) Nos.132 to 134 of 2021 finding to the above effect has been recorded in paragraph 16 of the impugned order. Paragraph 17 of the order further records the unconditional apology tendered by the appellant. Thereupon, the court imposed costs of Rs.1 lakh, though a prayer to that effect was not made in the applications and it was beyond the scope of the power conferred under Order XXXIX Rule 2A of the CPC. For ready reference Order XXXIX Rule 2A of the CPC is quoted hereunder:
"Order XXXIX - Temporary Injunctions and Interlocutory Orders Rules 1 and 2 ....
Rule 2A. Consequence of disobedience or breach of injunction.— (1) In the case of disobedience of any injunction granted or other order made under rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Court granting the injunction or making the order, or any Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be ____________ Page 7 of 10 https://www.mhc.tn.gov.in/judis O.S.A.(CAD) Nos.132 to 134 of 2021 detained in the civil prison for a term not exceeding three months, unless in the meantime the Court directs his release. (2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto."
8. The provision quoted above provides for detention in the civil prison for a term not exceeding three months for disobedience or breach of the order in a given case referred under Order XXXIX Rule 2A of the CPC. The provision aforesaid does not provide for imposition of costs and that too in a case where the disobedience or breach was not found to be intentional or deliberate.
9. In view of the above, we are of the firm opinion that the order impugned imposing costs on the appellant is beyond the ____________ Page 8 of 10 https://www.mhc.tn.gov.in/judis O.S.A.(CAD) Nos.132 to 134 of 2021 purview of Order XXXIX Rule 2A of the CPC and ignoring the prayer made in the applications. The costs could not have been imposed once the act of the appellant herein was not found to be intentional or deliberate violation of the order passed by the court on 6.10.2021 and even otherwise being not provided under Order XXXIX Rule 2A of the CPC.
For the foregoing reasons, these appeals are allowed and the order impugned is set aside. No costs. Consequently, C.M.P.Nos.20403, 20405 and 20406 of 2021 are closed.
(M.N.B., ACJ.) (P.D.A., J.)
15.12.2021
Index : Yes/No
sasi
To:
The Sub Assistant Registrar
Original Side
High Court, Madras.
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O.S.A.(CAD) Nos.132 to 134 of 2021
M.N.BHANDARI, ACJ
AND
P.D.AUDIKESAVALU,J.
(sasi)
O.S.A. (CAD) Nos.132 to 134 of 2021
15.12.2021
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