Delhi High Court
Primordial Systems Pvt Ltd vs Indian News Paper Society & Ors on 4 July, 2017
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 4th July, 2017
+ CM(M) 546/2016 & CM No.20837/2016 (for stay)
PRIMORDIAL SYSTEMS PVT LTD ..... Petitioner
Through: Mr. Prashant Mehta & Mr.
Alok Tripathi, Advs.
Versus
INDIAN NEWS PAPER SOCIETY & ORS ..... Respondents
Through: Mr. B.B. Gupta, Sr. Adv. with Mr.
Raghav Kacker, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This petition under Article 227 of the Constitution of India
impugns the judgment dated 9th February, 2016 of the learned
Additional District Judge (ADJ) vacating the order (under Order
XXXIX Rules 1 and 2 of the CPC) dated 22nd November, 2011 of the
Civil Judge, Delhi in favour of petitioner / plaintiff by allowing the
appeal preferred by the respondent no.1 / defendant Indian Newspaper
Society (INS) allowing the application of the petitioner / plaintiff.
2. The petitioner / plaintiff carrying on business of providing
educational services had engaged M/s Hype N Hike as an advertising
agency inter alia for placing advertisements of the petitioner in the
print media. According to M/s Hype N Hike, the petitioner owed
certain monies to M/s Hype N Hike and which the petitioner was
failing to pay. M/s Hype N Hike approached the respondent no.1 INS
to issue an advisory to newspapers and advertising agencies not to
deal with the petitioner. The respondent no.1 INS found merit in the
said representation / complaint of M/s Hype N Hike and issued an
CM (M) No.546/2016 Page 1 of 7
advisory dated 24th August, 2011 to all its member publications and
accredited advertising agencies "not to release any advertisements of
the petitioner till further advice".
3. Aggrieved from the aforesaid advisory, the petitioner / plaintiff
instituted the suit from which this petition arises impugning and
seeking stay of the said advisory.
4. The suit was accompanied with an application for interim stay.
5. The learned Civil Judge found merit in the application of the
petitioner for interim injunction and vide order dated 22 nd November,
2011 supra granted the stay of the said advisory dated 24 th August,
2011.
6. The respondent no.1 INS preferred an appeal under Order XLIII
Rule 1(r) of the CPC against the said order and which appeal was
allowed. Resultantly, the interim stay of operation of the advisory
dated 24th August, 2011 stood vacated and the advisory remains in
force.
7. The counsel for the petitioner / plaintiff states that owing to the
said advisory none of the advertising agencies and print media are
ready to carry the advertisements of the petitioner. Resultantly, this
petition under Article 227 of the Constitution of India.
8. Though interim relief was claimed in this petition but has not
been granted as yet.
9. The counsel for the petitioner / plaintiff and the senior counsel
for the respondent no.1 INS have been heard.
CM (M) No.546/2016 Page 2 of 7
10. Though HT Media Ltd. and The Times Group were also
impleaded by the petitioner as defendants in the suit and are
respondents no.2 and 3 to this petition but none appears for them. On
enquiry it is informed that they are not contesting the suit either. The
senior counsel for the respondent no.1 states that HT Media Ltd. did
file a written statement to the suit but has not been appearing.
11. I have enquired from the counsel for the petitioner/plaintiff,
whether M/s Hype N Hike have instituted any proceeding for recovery
of their dues from the petitioner.
12. The counsel for the petitioner states that the petitioner/plaintiff,
besides the suit for injunction from which this petition arises, has also
instituted a suit for recovery of damages of about Rs.45 lacs from M/s
Hype N Hike and in which suit M/s Hype N Hike have filed a
counterclaim for recovery of their dues of about Rs.22 lacs from the
petitioner. Besides the said proceedings no other proceeding is stated
to be pending though the senior counsel for the respondent no.1 INS
points out that the petitioner had earlier filed a complaint with the
Competition Commission of India (CCI) with respect to the same
advisory but sought to withdraw the same; however CCI nevertheless
observed that it had no jurisdiction.
13. I have enquired, whether the petitioner is challenging the
advisory per se on the ground of the respondent no.1 INS being not
entitled to issue such advisory.
14. The counsel for the petitioner states that that is not his
contention and he is challenging the advisory on the ground that
CM (M) No.546/2016 Page 3 of 7
without the claim of M/s Hype N Hike being adjudicated, the business
of the petitioner cannot be throttled by depriving the petitioner from
advertising rights.
15. I have further enquired, whether not the issue has already been
considered by this Court in several judgments.
16. The counsel for the petitioner has referred to Century Plyboards
(India) Ltd. Vs. The Advertising Standards Council of India
MANU/MH/0030/2000 and particularly to para no.7 thereof wherein
in the context of the power of the Advertising Standards Council of
India (ASCI) to issue directions to its members, it has been held that if
the directions have the effect of adversely affecting a non-member or
profession of a non-member, the direction would be without
jurisdiction.
17. I have however enquired from the counsel for the petitioner
whether not the dicta of this Court in R.K.B Herbals (P) Ltd. Vs.
Enterprises Advertising (P) Ltd. AIR 1989 Del 253 and the view
taken by me in Metro Tyres Ltd. Vs. The Advertising Standards
Council of India 2017 SCC Online Del 7504, is different from the
view taken by the High Court of Bombay in the judgment supra and
after considering the same.
18. The counsel for the petitioner then refers to Tata Press Ltd. Vs.
Mahanagar Telephone Nigam Ltd. (1995) 5 SCC 139 holding that
commercial advertising is protected under Article 19(1)(a) of the
Constitution.
CM (M) No.546/2016 Page 4 of 7
19. However the said judgment does not deal with the issue as has
arisen in this case.
20. I have however enquired from the counsel for the
petitioner/plaintiff, whether not the relief sought by the petitioner in
the suit from which this petition arises as well as in this petition is to
the prejudice of M/s Hype N Hike at whose instance the respondent
no.1 INS issued the advisory and how can the petitioner institute a suit
prejudicing the rights of a person without impleading that person and
would not that amount to the petitioner obtaining a walk over.
21. The counsel for the petitioner states that the challenge in this
suit is to the advisory of the respondent no.1 INS only and M/s Hype
N Hike is not a necessary party to the suit.
22. I am unable to agree. It is admitted that the advisory has not
suo motu been issued by respondent no.1 INS but is on a complaint of
M/s Hype N Hike and has been issued after granting an opportunity of
hearing to M/s Hype N Hike as well as the petitioner (the counsel for
the petitioner states that while issuing advisory the contentions of the
petitioner have not been dealt with). When an industrial body in
accordance with its rules issues such advisories at the instance of its
members, the person aggrieved therefrom cannot challenge the
advisory without impleading the party at whose instance advisory has
been issued. If the contentions of the counsel for the petitioner were
to be accepted, then in no appeal/revision petition before this Court,
the adversary party would be required to be impleaded and only the
CM (M) No.546/2016 Page 5 of 7
Court passing the impugned order would be impleaded as the
respondent.
23. I am further of the view that if the power to issue the advisory is
per se not under challenge, the grant of interim stay on the operation
of the advisory can only be on taking a prima facie view whether the
monies owing to non-payment whereof advisory has been issued are
prima facie due or not and after obtaining a security for recovery
thereof in the event of being found to be due. For this reason also, I
am of the view that M/s Hype N Hike at whose instance the advisory
has been issued is a necessary party because only they will be able to
satisfy this Court that they have a prima facie claim against the
petitioner.
24. The respondent no.1 INS cannot be expected to make any
submission on this ground.
25. The counsel for the petitioner has also contended that the
respondent no.1 INS in its written statement has not taken the plea of
non-maintainability of the suit owing to non-joinder of the necessary
party.
26. Even if that be so, the Court before granting the relief sought
from it is obliged to see that the person / party likely to be affected by
such order is before this Court and cannot grant relief to the prejudice
of the party behind its back.
27. The counsel for the petitioner at this stage states that the petition
be adjourned to enable the petitioner to implead M/s Hype N Hike.
CM (M) No.546/2016 Page 6 of 7
28. Impleading M/s Hype N Hike in this petition alone would not
serve the purpose when M/s Hype N Hike is not a party to the suit.
Once the counsel for the petitioner impleads M/s Hype N Hike as
party to the suit, the application for injunction will necessarily have to
be heard afresh.
29. Accordingly, this petition is disposed of with liberty to the
petitioner / plaintiff to move an appropriate application before the
Court before which the suit from which this petition arises is pending,
for impleading M/s Hype N Hike as defendant to the suit; if the said
application is allowed, the petitioner shall be entitled to address fresh
arguments on the application for interim relief and which respondent
no.1 INS as well as the other existing defendants and the newly
impleaded defendant if any shall be entitled to oppose and the
aggrieved party shall have appropriate remedies thereagainst.
No costs.
RAJIV SAHAI ENDLAW, J.
JULY 04, 2017 „gsr‟ CM (M) No.546/2016 Page 7 of 7