Delhi High Court - Orders
Zomato Private Limited Formerly Zomato ... vs Harsh Pandey & Ors on 8 April, 2021
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~27
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 164/2021
ZOMATO PRIVATE LIMITED FORMERLY ZOMATO MEDIA
PVT LTD ..... Plaintiff
Through: Mr. Divjyot Singh and Ms. Avsi
Malik, Advocates.
versus
HARSH PANDEY & ORS. ..... Defendants
Through: Ms. Mamta Jha and Ms. Shruttima
Ehersa, Advocates for D-9/Google
LLC.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 08.04.2021 I.A. 5067/2021 (for exemption)
1. Allowed, subject to all just exceptions.
2. The application is disposed of.
I.A. 5066/2021 (for enlargement of time for filing court fees)
3. The counsel for the Plaintiff submits that the court fee has been deposited and the e-stamp paper will be issued by 12th April, 2021. The application is allowed by enlarging the time for filing the court fee by a period on one week from today.
4. With the above directions, the application stands disposed of. I.A. 5065/2021 (under Order 11 Rule 5 (1))
5. By way of this application, the Plaintiff seeks direction to Defendant No. Signature Not Verified Digitally Signed CS(COMM) 164/2021 Page 1 of 6 By:SAPNA SETHI Signing Date:12.04.2021 16:51 9 - Google LLC to file the impugned video uploaded on the link "'https://www.youtube.com/watch?v=_oQkghObtNM'" (in short "impugned video") or in the alternative, seeks permission to download and file the same before this Court. Learned counsel for the Defendant No. 9 states that she has no objection in case the Plaintiff were to download and file the same before this Court.
6. In view of the above, the application is allowed and the Plaintiff is permitted to download the video and file the same before this Court.
CS(COMM) 164/2021
7. Let the plaint be registered as a suit.
8. Upon filing of process fee, issue summons to the Defendants by all permissible modes. Summons shall state that the written statements shall be filed by the Defendants within 30 days from the date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiffs, without which the written statement shall not be taken on record.
9. Liberty is given to the Plaintiff to file a replication within 15 days of the receipt of the written statements. Along with the replication, if any, filed by the Plaintiff, an affidavit of admission/denial of documents of the Defendants, be filed by the Plaintiff, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
10. List before the Joint Registrar for marking of exhibits on 1st June, 2021. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
Signature Not Verified Digitally Signed CS(COMM) 164/2021 Page 2 of 6 By:SAPNA SETHI Signing Date:12.04.2021 16:5111. List before Court for framing of issues thereafter. I.A. 5064/2021 (under Order 39 Rule 1 &2)
12. The Plaintiff, Zomato Private Limited (formerly Zomato Media Private Limited), is a food aggregator and delivery company which operates an online restaurant search and discovery platform through its website (www.zomato.com) and mobile application by the name of „Zomato‟ which allows users to inter alia place online orders on a variety of restaurants listed with the Plaintiff. The Plaintiff‟s grievance stems from the impugned video which can be accessed by the aforenoted link. It is contended that the content of the impugned video is fake, inaccurate, false, defamatory and disparaging to the Plaintiff and its business interests. According to the Plaintiff, the impugned video has been made and uploaded by Defendant Nos. 1 to 8 on YouTube which is owned by Defendant No. 9. The screenshots of the impugned video have been filed along with the plaint. Mr. Divjyot Singh, learned counsel for the Plaintiff has also played the impugned video for the viewing of this Court. Mr. Singh submits that impugned video titled as "We opened a FAKE Restaurant on ZOMATO| INDIA", has been uploaded by a channel under the name and style of "HPZ Arena" which is owned by Defendant No. 1. This channel has approximately 16,500 subscribers. The impugned video features Defendant Nos. 1 to 8 and contains content, which is not only false and fake but also harms the reputation and goodwill of the Plaintiff. The identification of the Defendants has been done by the Plaintiff by visiting the YouTube page of Defendant No. 1, which gives the detail of the email address and contact number which has been mentioned in the memo of parties. After carrying out the search and database for the said e-mail address, the Plaintiff found the same to be Signature Not Verified Digitally Signed CS(COMM) 164/2021 Page 3 of 6 By:SAPNA SETHI Signing Date:12.04.2021 16:51 registered on the Zomato Platform with the User ID 67898683. This user ID was found to be linked to two device IDs, which were found to be associated with four other user accounts, two of which belong to Defendant No. 2- Shivam Tiwari.
13. The impugned video demonstrates that Defendant Nos. 1 to 8 has set up a fake restaurant under the name of "Yummy Tummy". In the said video, it is claimed that the said restaurant has been registered at the residential address of the Defendants. The Defendants then created a fake website and corresponding social media accounts of the fake restaurant. It is further claimed that the Defendants received an email from the Plaintiff whereby their fake restaurant was approved to take online orders via the Zomato Platform. The video screenshots depict an e-mail allegedly received by the Defendants from the Plaintiff regarding listing of their restaurant on the Zomato platform. It is further claimed that when a call was placed to the customer care department of the Plaintiff, enquiring about the hygiene inspection of the fake restaurant, the person impersonating the customer care representative informs the Defendant that they can commence their services even before such an inspection is conducted. In this manner, the Defendants then represent that they will receive and service orders from their fake restaurant before the hygiene inspection is conducted by the Plaintiff. The impugned video then further shows that the fake restaurant during the course of the day received up to 20 orders via the Zomato Platform which the Defendants service by procuring food from other places or cooking in the kitchen at their residence. Thus, the impugned video seems to highlight the misuse and ineffective processes of the Plaintiff and that the Zomato platform can be manipulated to receive and service orders without any Signature Not Verified Digitally Signed CS(COMM) 164/2021 Page 4 of 6 By:SAPNA SETHI Signing Date:12.04.2021 16:51 proper hygiene/physical inspection of the restaurant by the Plaintiff.
14. Mr. Singh submits that if what has been shown in the impugned video is indeed true, the Plaintiff would not have any grievance. However, the entire impugned video is premised on falsehood and therefore the Defendants cannot be permitted to tarnish the image of the Plaintiff. In order to make good his case, Mr. Singh submits that the present suit has accompanied by the affidavits of Ms. Akriti Chopra, who is a founder member of the Plaintiff. Mr. Singh submits that the Plaintiff has stated on oath that the order confirmation page being shown in the impugned video, is a fake email communication. Further, the order No. 1197941838, which is shown in the impugned video, is in fact a number given to a test order placed in 2018 on a test page called "TheLeanApps Test". This, the Plaintiff has been able to ascertain on the basis of search done on its database. Mr. Singh further submits that the screenshots shown in the impugned video provides a "red ID: 19136638" and the fake restaurant's alleged address is mentioned as Survey 74/2, opposite Indian Oil Petrol Pump, Village Nere, Mulshi & Vella, Hinjewadi, Pune. On tracing the restaurant ID and the address in the Plaintiffs database, the same was mapped to a restaurant called „Jivitva‟ in Pune. It is thus evident that the order confirmation, registration on the Zomato platform and other aspects depicted in the impugned video are wholly fabricated by the Defendants.
15. Having considered the submissions of Mr. Singh, the Court is of the opinion that the Plaintiff has made out a prima facie case in its favour. The balance of convenience also lies in favour of the Plaintiff, having regard to the fact that the video which has been shown on the channel of Defendant No. 1, has now attracted nearly 5000 hits by the time the suit has been taken Signature Not Verified Digitally Signed CS(COMM) 164/2021 Page 5 of 6 By:SAPNA SETHI Signing Date:12.04.2021 16:51 up hearing. Therefore, in case the interim injunction as prayed for is not granted, irreparable loss will thus be cause to the Plaintiff. Accordingly, till the next date of hearing Defendant Nos. 1 to 8 are therefore directed to take down the impugned video and further restrained from uploading, posting or sharing the impugned video over any form of media, including without limitation, the internet or any social media platform. Further, Defendant No. 9 is directed to disable the impugned video at the URL "https://www.youtube.com/watch?v=_oQkghObtNM" from the Indian domain.
16. List before the Joint Registrar on 1st June, 2021.
17. List before the Court on 12th August, 2021.
SANJEEV NARULA, J APRIL 8, 2021 nk Signature Not Verified Digitally Signed CS(COMM) 164/2021 Page 6 of 6 By:SAPNA SETHI Signing Date:12.04.2021 16:51