Madras High Court
M/S.Hindustan Unilever Limited vs Reckitt Benckiser (India) Limited on 17 July, 2014
Author: R.Karuppiah
Bench: R.Karuppiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 17.07.2014 Coram THE HONOURABLE MR.JUSTICE R.KARUPPIAH C.R.P.(PD).No.3741 of 2008 and M.P.No.1 of 2008 M/s.Hindustan Unilever Limited, No.101, Santhome High Road, (Entrance from South Canal Bank Road), Chennai-600 028. ... Petitioner Vs. 1. Reckitt Benckiser (India) Limited, 227, Okhla Industrial Estate, Phase-III, Okla, New Delhi-110 020 2. Brand Power Buchanan Group India, 12, Ravikiran, Plot No.B-58, Andheri, Mumbai-400 053 ... Respondents Prayer:- Civil Revision Petition is filed under Article 227 of Constitution of India against the order dated 21.10.2008 made in I.A.No.10399 of 2008 in O.S.No.2901 of 2008 on the file of V Additional City Civil Court, Chennai. For Petitioner : Mr.Madhan Babu For M/s.Satish Parasaran For 1st Respondent : Mr.R.Jawaharlal for Mr.R.Sarvanakumar For 2nd Respondent : No Appearance &&&& O R D E R
The revision petitioner, who is the first defendant in the original suit in O.S.No.2901 of 2008 filed this revision petition against the order dated 21.10.2008 passed in I.A.No.10399 of 2008 in O.S.No.2901 of 2008 on the file of V Additional City Civil Court, Chennai.
2.For the sake of convenience, the first defendant in the original suit is referred as the revision petitioner, the plaintiff in the original suit is referred as the 1st respondent and the 2nd defendant in the original suit is referred as the 2nd respondent hereafter.
3.The 1st respondent/plaintiff filed a suit in O.S.No.2901 of 2008 seeking the reliefs as follows:-
a)a permanent injunction restraining the defendants, their directors, employees and servants, distributors, marketers, franchisees, dealers, agents,stockists representatives, advertisers, successors-in-interest, assigns or any person claiming through, or under or on behalf of the defendants from issuing/releasing/dismantling in print, audio, audio-visual, Internet or any other medium of communication, the impugned advertisements(filed as Document No.1 and 2) in any language including Tamil language or in any other manner disparaging the goodwill and reputation of the plaintiff and its product sold under the name HARPIC in any other advertisements and in any medium of communication including print, audio, audio-visual and Internet;
b)the defendants be ordered and decreed to pay to the plaintiff Company a sum of Rs.5,50,000/- as damages for the loss suffered by the plaintiff on account of the acts of disparagement committed by the defendants; and
c) costs of the suit to the plaintiff company
4.Along with the above said suit in O.S.No.2901 of 2008, the first respondent herein/plaintiff filed an application in I.A.No.6991 of 2008 for ad-interim injunction against the revision petitioner/first defendant and the second respondent/second defendant.
5.The trial Court had granted an ad-interim injunction on 22.04.2008. Aggrieved over the above said order of ad-interim injunction granted by the trial Court, the revision petitioner had preferred a Civil Revision Petition in C.R.P(PD)No.1639 of 2008 before this Court on 24.04.2008. This Court had considered the both side contentions and finally, set aside the order of ad-interim injunction granted in I.A.No.6991 of 2008 in O.S.No.2901 of 2008 on 25.04.2008 for the simple reason that the order does not contain any reason indicating the reason for grant of such an exparte order in favour of the petitioner therein/first respondent herein.
6.After several months, the revision petitioner herein/first defendant has filed an application in I.A.No.10399 of 2008 in O.S.No.2901 of 2008 on 03.07.2008 under Order VII, Rule 11 CPC to reject the plaint on the following main grounds:
(a)Non-disclosure of cause of action;
(b)Lack of Jurisdiction; and
(c)Suppression of material facts.
7.Briefly the facts stated in the affidavit filed by the revision petitioner in support of the application in I.A.No.10399 of 2008 are as follows:
The first respondent had already filed a suit in C.S.(O.S)No.136 of 2008 before Delhi High Court against the revision petitioner and the same is pending. The revision petitioner also filed another suit in C.S.No.1128 of 2007 before this Court (i.e.) Madras High Court on 14.12.2007 against the first respondent and also obtained an interim injunction on 20.12.2007. The revision petitioner had filed another suit in C.S.No.1131 of 2007 before Madras High Court and obtained interim injunction in O.A.No.1376 of 2007 in C.S.No.1131 of 2007. But, the first respondent suppressing the above said material facts, filed the present suit (i.e.) O.S.No.2901 of 2008 as a counter blast to the proceedings before the High Court, Madras.
8.Further, the revision petitioner had filed the caveat petitions before the High Court of Madras on 07.03.2008, High Court of Delhi on 19.02.2008, High Court of Bombay on 11.02.2008 and High Court of Calcutta on 31.01.2008. The first respondent suppressed the above said facts and filed the present suit before the City Civil Court, Chennai by way of forum-shopping. The first respondent has not produced an iota of evidence in their entire plaint to show that the revision petitioner has caused the impugned advertisement. Further, the first respondent has miserably failed to disclose the cause of action against the revision petitioner and hence, the suit is liable to be rejected for non-disclosure of cause of action. Further, the first respondent has created illusionary cause of action, which is not permitted in law. The first respondent neither pleaded any damages nor the damage sustained was in Chennai. Merely, the Branch Office is in Chennai, no cause of action arose at Chennai, since the main Corporate Head Office is located in Mumbai. The first respondent has conveniently avoided impleading the main Corporate Office in Mumbai as necessary party in the suit. Further, the first respondent has chosen to proceed directly to this Court for reliefs, without exhausting possible forum (i.e.) ASCI (Advertising Standards Council of India). From the above said reasons stated in the application, the revision petitioner sought for the relief of rejection of the plaint.
9.The second respondent in the above said application in I.A.No.10399 of 2008 has not filed any counter.
10.The first respondent in the above said application in I.A.No.10399 of 2008 filed a counter, in which, it has denied various averments made in the affidavit by stating that the application was filed only with malafide intention. It is also averred in the counter that the first respondent filed the suit before the V Additional City Civil Court on 22.04.2008 and after hearing the first respondent, the Court has passed an exparte interim injunction and ordered notice to the revision petitioner and the second respondent herein and the application was posted on 29.04.2008. Immediately, the revision petitioner filed a vakalath and also preferred C.R.P(PD)No.1639 of 2008 before the High Court, Madras on 24.04.2008. This Court has vacated the exparte interim injunction granted by the trial Court only on the ground that reasons have not been specified in the interim injunction order passed on 22.04.2008. The revision petitioner has not chosen to file any reply to the interim application or to the suit. After the lapse of three months from the above said proceedings ended, this application is filed by the revision petitioner only to delay the proceedings and therefore, on the sole ground, the present application is liable to be dismissed. The allegations in the application are outside the scope of Order VII, Rule 11 CPC. The above said provision can be invoked, only if a plain reading of the plaint does not disclose a cause of action. Therefore, the purported concealment of unconnected proceedings, which have no relevance to the subject matter of the present suit, cannot be a ground for seeking rejection of plaint under Order VII, Rule 11 of CPC. In the present suit, on a bare reading of the plaint, it is apparent that the first respondent has unequivocally disclosed a cause of action i.e. the damage being caused to the reputation, goodwill and brand image to HARPIC range of products. Further, the present suit is not barred by any law. The allegation of the revision petitioner that the first respondent has suppressed the material facts, is wholly false. It is settled law that each and every act of defamation/disparagement gives a fresh cause of action. The suit filed before the High Court Delhi on 14.12.2007 relates to a different advertisement and also there is no relevance to the present suit. The present suit was filed by the first respondent in April 2008 after telecast of the impugned advertisement by the revision petitioner. Further, the revision petitioner has not filed any caveat before the City Civil Court, Chennai. Admittedly, the impugned advertisement is being telecasted in several channels including Tamil channels like, Sun TV, Jaya TV, which are viewed by consumers in Chennai. In addition, the advertisement is displayed in the website of the second respondent, which can be viewed from Chennai and a specific averment in this regard is made in the plaint. Under similar circumstances, the first respondent had pleaded the cause of action, which arose within the territorial jurisdiction of the V Additional City Civil Court. The revision petitioner had filed another suit in C.S.No.1128 of 2008 before the High Court, Madras, even though the Corporate Office of the first respondent is located in Gurgaon, Haryana. In terms of Section 20(c) CPC, the suits can be instituted, where the cause of action, wholly or in part arises. The revision petitioner had already filed a suit in C.S.No.1128 of 2008 before the High Court Madras, without approaching ASCI (Advertising Standards Council of India). ASCI(Advertising Standards Council of India)does not have the power to enforce its orders or award damages. In addition, there is no mandatory requirement to approach ASCI (Advertising Standards Council of India). The filing of the suit before the City Civil Courts, Madras is not prohibited under any law. The present application is filed by the revision petitioner with malafide intention and to delay the proceedings and therefore, it is prayed for dismissal of the application in the counter filed by the first respondent.
11.The trial Court has discussed about the averments made in the plaint, particularly in paragraph Nos.10,15 and 16 of the plaint and finally, held that the cause of action against the revision petitioner and the second respondent arose at Chennai. It has further held that as per Section 20 CPC, if any cause of action arose wholly or in part, the parties are entitled to file the suit and in the instant case, the cause of action in part arose in Chennai and also Chennai address was given by the revision petitioner and hence, the provision under Section 20 CPC are complied with. The trial Court also held that the revision petitioner has not established that the action of the first respondent was barred by any law, even though the other forums are available to take the matter for adjudication like, the MRTP Commission or ASCI(Advertising Standards Council of India). Further, the trial Court has held that under Section 9 of Civil Procedure Code, the City Civil Court, wherein the suit was filed, is having jurisdiction to try the suit. The trial Court has further held that the revision petitioner himself admitted that the various suits are pending before various High Courts including High Court, Madras. The revision petitioner has not pleaded as the present suit in O.S.No.2901 of 2008 was barred by res judicata and in the above said circumstances, the plaint cannot be rejected as per the provisions Order VII Rule 11 of CPC and finally, the trial Court has dismissed the above said application in I.A.No.10399 of 2008 filed by the revision petitioner.
12.Aggrieved over the above said dismissal order passed by the trial Court, this revision petition has been preferred by the revision petitioner.
13.Points for consideration in this revision petition is that whether the findings of the trial Court are perverse and illegal or the dismissal order passed by the trial Court is valid in law?
14.The learned counsel appearing for the revision petitioner submitted that the first respondent has failed to disclose any cause of action either for alleged advertisement to be disparaging or for sustained damages and hence, the plaint is liable to be rejected in-limine. The learned counsel also pointed out that in the entire plaint, the first respondent has described about its HARPIC product and the advertisement telecasted by the second respondent and nowhere in the plaint, the first respondent herein mentioned that the impugned advertisement causes or had caused damage to it in support of its claim for damages to the tune of Rs.5,50,000/- and therefore, no cause of action has been pleaded by the first respondent to sustain its claim for damages and on that ground also the suit is liable to be rejected in limine. The learned counsel appearing for the revision petitioner further pointed out that the City Civil Court, wherein the suit was filed, had no jurisdiction to entertain the same, since both the first respondent and the second respondent are situated at Delhi and Mumbai respectively beyond the jurisdiction of the City Civil Court, Chennai. The learned counsel also pointed out that in the plaint, there is no plea or allegation that the revision petitioner's branch office is in Chennai, which had caused the release of the impugned advertisement, but, the Chennai Office had been wilfully mentioned as the first defendant in the plaint and therefore, the suit was filed by the first respondent by way of forum shopping. Further, the learned counsel submitted that anticipating suits to be filed by the first respondent, the revision petitioner had filed caveats before the Delhi High Court, Bombay High Court, Calcutta High Court and also Madras High Court, but the first respondent, suppressing the above said facts, filed this suit before the City Civil Court, Chennai and obtained the exparte order of injunction. The revision petitioner had also preferred a Civil Revision Petition in C.R.P.(PD)No.1639 of 2008, in which, the above said interim exparte injunction was set aside. The learned counsel further submitted that the settled position in law is that the grievance with regard to the advertisement, would only lie before the MRTP Commission and ASCI and therefore, the jurisdiction of the civil Court is ousted. Further, the learned counsel submitted that the trial Court has failed to consider all the decisions relied on by the revision petitioner has not been properly considered by the trial Court and hence, the order of the trial Court dismissing the application in I.A.No.10399 of 2008 in O.S.No.2901 of 2008 filed by the revision petitioner under Order VII, Rule 11 CPC is erroneous and it is liable to be set aside.
15.Per contra, the learned counsel appearing for the first respondent would submit that the trial Court has considered properly all the contentions raised by the revision petitioner and correctly dismissed the above said application filed for rejection of the plaint and the above said findings are not illegal and perverse and hence, there is no need to interfere with the above said findings. Learned counsel further pointed out that the trial Court has extracted the relevant paragraph Nos.10,15 and 16 regarding the averments made about the cause of action arose for filing the suit and correctly given findings that the suit is maintainable, since part of cause of action arises within the jurisdiction of the City Civil Court, Chennai. Further, the learned counsel appearing for the first respondent pointed out that the revision petitioner failed to establish that the suit filed by the first respondent is barred by any law and also the trial Court has rightly held that in view of other forums for adjudication available like MRTP Commission and ASCI(Advertising Standards Council of India) alone, it is not barred by law to file the suit before the Civil Court, since wherein it is not specifically barred. The learned counsel further pointed out that all the decisions relied on by the revision petitioner are not applicable to the facts of the present case. The learned counsel appearing for the first respondent further submitted that the revision petitioner has failed to establish that the plaint is to be rejected under order VII, Rule 11 CPC and the application is filed only to prolong the proceedings and therefore, prayed for dismissal of the the Civil Revision Petition.
16.Admittedly, the first respondent filed the suit in O.S.No.2901 of 2008 for permanent injunction and other relief's against the revision petitioner and the second respondent, but both of them have not filed any written statement in the above said suit. It is also revealed from the records that the first respondent filed an application in I.A.No.6991 of 2008 for ad-interim injunction and the trial Court had granted the above said relief and the revision petitioner alone preferred a revision in C.R.P.No.1639 of 2008 before this Court and this Court has elaborately discussed both sides contentions and finally vacated the injunction on 25.04.2008 for the simple reason that the order does not contain any reason indicating the reasons for grant of such exparte order. Long after the above said order passed in C.R.P(PD)No.1639 of 2008, only on 03.07.2008, the revision petitioner alone filed this application in I.A.No.10399 of 2008 in O.S.No.2901 of 2008 under Order VII, Rule 11 CPC to reject the plaint.
17.The main contention of the revision petitioner is that in the plaint the first respondent has not pleaded any cause of action or cause of action in part arose either for alleged advertisement to be disparaging or for sustained damages within the jurisdiction of the City Civil Court, Chennai besides several other grounds for rejection of the plaint.
18.The relevant provision under Order VII, Rule 11 CPC is extracted hereunder:
11.Rejection of plaint:- The plaint shall be rejected in the following cases:-
(a)where it does not disclose a cause of action
(b)where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c)where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d)where the suit appears from the statement in the plaint to be barred by any law;
(e)where it is not filed in duplicate;
[(f)where the plaintiff fails to comply with the provisions of rule 9:] [Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff]
19.In the instant case, the revision petitioner filed the above said application to reject the plaint on the main grounds that the first respondent has not disclosed the cause of action under Order VII, Rule 11(a) CPC and the suit is not maintainable as barred by law as stated under Order VII, Rule 11(a) CPC.
20.In the instant case, as rightly contended by the learned counsel appearing for the first respondent and discussed by the trial Court in detail in the order, the first respondent has clearly stated in para Nos.10,15, and 16 in the plaint about the cause of action arose in Chennai. The first respondent also given the revision petitioner's (first defendant's) address as follows:-
M/s Hindustan Unilever Limited, No.101, Santhome High Road, (Entrance from South Canal Bank Road), Chennai-600 028.
21.The revision petitioner alone preferred a Civil Revision Petition in CRP(PD)No.1639 of 2008 before this Court for vacating the order of interim injunction and in the above said proceedings, the revision petitioner had given the same address i.e. Chennai address. The second respondent has not filed any revision petition or not filed any application for rejection of the plaint. Admittedly, both the revision petitioner and the second respondent i.e. both the defendants have not filed written statement in the original suit so as to deny the alleged cause of action stated in the plaint.
22.It is also relevant to exact the provision under Section 20 CPC which reads as follows:
20.Other suits to be instituted where defendants reside or cause of action arises___ Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction_
(a)the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or
(b)any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides or carries on business, or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c)the cause of action, wholly or in part, arises.
[****] [Explanation]-A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.
23. As rightly pointed out by the learned counsel appearing for the first respondent, in the plaint it is clearly averred about the cause of action and also the revision petitioner was impleaded as first defendant wherein the Chennai address of the revision petitioner alone has been given. In the above said circumstances, the plaint filed by the first respondent before the City Civil Court, Chennai cannot be rejected on the ground that no cause of action arises under Section 20 CPC. As rightly pointed out by the learned counsel appearing for the first respondent, the trial Court has correctly discussed in detail in the averments in the plaint, particularly, in para Nos.10,15 and 16 about the cause of action and finally held that the plaint is not liable to be rejected on the ground that no cause of action arises before the City Civil Court, Chennai.
24.The next ground stated in the application for rejection of plaint is that the civil Court has no jurisdiction to try the suit and the first respondent is entitled to seek the relief before the MRTP commission or ASCI(Advertising Standards Council of India) only. The learned counsel appearing for the first respondent would submit that there is no specific bar to approach the civil Court seeking the relief sought for in the plaint. The learned counsel further submitted that the above said forums have no right to grant any alternative relief and therefore, the plaint cannot be rejected as prayed for by the revision petitioner. As rightly discussed by the trial Court, the revision petitioner has failed to point out any specific provision regarding bar of the civil Court. Therefore, the trial Court has correctly considered the submissions of both sides and held that there is no specific bar to file the civil suit before the civil Court and on that ground also the plaint cannot be rejected.
25.The learned counsel appearing for the revision petitioner relied on the several decisions reported in (i)T.Arivandandam v. T.V.Satyapal and another [(1977)4 Supreme Court Cases 467; (ii)Nesammal and another v. Edward and another [1998 (III) CTC 165]; (iii)Dhodha House v. S.K.Maingi [(2006)9 Supreme Court Cases 41]; (iv)(India TV) Independent News Service Pvt. Limited v. Indian Broadcast Live Llc and ors. [2007(35)PTC 177 (Del.) and (v)Church of Christ Charitable Trust and Educational Charitable Society represented by its Chairman v. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee [(2012) 8 Supreme Court Cases 706].
26.A careful reading of the above said decisions reveals that the facts of the above said cases are not differ from the facts of the present case. In the instant case, as already discussed the details of cause of action arose in Chennai, are clearly stated in the plaint in various paragraphs and also the Chennai address of the revision petitioner where he is doing business has been stated. Further, the revision petitioner already filed another suit in C.S.No.1128 of 2008 before the High Court of Madras with the same facts as stated in the present plaint and therefore, the above said decision relied on by the revision petitioner are not applicable to the present case.
27. The learned counsel appearing for the first respondent herein relied on two decisions reported in D.Ramachandran v. R.V.Janakiraman and others [(1999) 3 Supreme Court Cases 267] and Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others [(2004)3 Supreme Court Cases 137 and submitted that the plaint cannot be rejected under Order VII, Rule 11 CPC, without trial, where the case discloses cause of action. In the present case, as already stated, the cause of action has been clearly stated in the plaint and the above said facts are true or false to be decided only after evidence. Therefore, the plaint cannot be rejected under Order VII, Rule 11 CPC in limine without trial as rightly held by trial Court. Therefore, from the above said discussions, it is clear that the first respondent has clearly stated the cause of action in the plaint arose within the jurisdiction of the City Civil Court, Chennai and also impleaded the revision petitioner as first defendant by giving Chennai address. In the above said circumstances, the plaint cannot be rejected under Order VII, Rule 11 CPC.
28.The other grounds stated in the application in I.A.No.10399 of 2008 in O.S.No.2901 of 2008 are that the suit has been filed with mala fide intention to harass the defendants, the main Corporate Office in Chennai is a necessary party or not, all are to be decided only after filing the written statement and after evidence in the trial. Therefore, the dismissal order passed in I.A.No.10399 of 2008 in O.S.No.2901 of 2008 is valid in law and there is no need to interfere with the findings of the trial Court.
29.In the result, the civil revision petition is dismissed. No costs. Consequently, the connected Miscellaneous Petition is also closed.
17.07.2014 ari Index:Yes/No Internet:Yes/No To The V Additional City Civil Court, Chennai.
R.KARUPPIAH, J., ari Order made in C.R.P.No.3741 of 2008 and M.P.No.1 of 2008 17.07.2014