RECKITT BENCKISER HEALTHCARE INDIA LIMITED Vs. EMAMI LIMITED

JUDGEMENT

(1.) The instant appeal, at the instance of the defendant no. 1 in the Title Suit No. 23783 of 2014 (hereinafter referred to as "the said suit"), is directed against the order dated December 9, 2014 passed by the learned Civil Judge (Senior Division), 4th Court at Alipore [hereinafter referred to as "the learned Civil Judge (Senior Division)] extending the ad-interim order of injunction dated November 21, 2014 restraining the appellant and the respondent no. 2 from advertising and publishing and/or circulating in the newspaper and television channels the advertisement of its product namely "MOOV" and from disparaging the product of the respondent no. 1 namely "ZANDU BALM". On the prayer of the appellant service of notice of this appeal on the respondent no. 2 was dispensed with.

(2.) The respondent no. 1 is the manufacturer of an ayurvedic medicine namely "ZANDU BALM", a balm providing relief from headache, backache and cold which is sold in the market in a distinctive packaging predominantly green in colour and combination of white. The respondent no. 1 is the proprietor of the registered trade mark in respect of its product "ZANDU BALM" with its unique packaging being predominantly green in colour with combination of white. The respondent no. 1 has alleged that the appellant/ a manufacturer of another balm namely "MOOV, has launched a new T.V. Commercial for its product "MOOV" which is aired on the channel "Colours" owned by the respondent no. 2 and in such advertisement the appellant has displayed the "ZANDU BALM" and drawn a comparison between its the said product "MOOV" and a balm showing the packaging of the plaintiff's product "ZANDU BALM", in order to denigrate the said "ZANDU BALM". According to the respondent no. 1, the appellant has deliberately aired the said advertisement with a malicious and a deliberate attempt to misrepresent to the general public that the product "ZANDU BALM" is not an effective product and no useful purpose will be served in application of the said product "ZANDU BALM". In the said suit, the respondent no. 1, being the plaintiff, has claimed various reliefs of perpetual injunction against the appellant and the respondent no. 2 from disparaging the said product "ZANDU BALM" and restraining them from displaying and/ or telecasting and/ or the said impugned advertisement for "MOOV". The respondent no. 1 has also an enquiry into the loss and damage, including special damages suffered by it for the act of disparagement and/or defamation and/or slander committed by the appellant by airing the said advertisement.

(3.) In the said suit the respondent no. 1 also moved an application under Order XXXIX Rules 1 and 2 read with Section 151 of the Code of Civil Procedure when the learned Civil Judge (Senior Division) passed the aforesaid ex-parte ad interim order dated January 21, 2014. On an application under Order XL Rule 1 of the Code of Civil Procedure, the learned Civil Judge (Senior Division) also passed an ex-parte order appointing a Receiver to take into custody, the master tape and all copies where such an impugned advertisement is stored and keep the same in his custody until further order. On the returnable date, that is, on December 9, 2014 the appellant appeared before the learned Civil Judge (Senior Division) raised objection to the jurisdiction of the court to entertain the suit and filed an application under Order VII Rules 10 and 11 of the Code of Civil Procedure. The respondent no. 1 prayed for extension of the said interim order dated November 21, 2014. By the impugned order dated December 9, 2014 the learned Court below fixed the hearing of the application filed by the appellant under Order VII Rules 10 and 11 of the Code of Civil Procedure on January 30, 2014 and extended the interim order till January 30, 2014.