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TMI Blog1997 (12) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... erference with such a discretionary order. - CIVIL APPEAL NO. 7755 OF 1997 - - - Dated:- 17-12-1997 - SUHAS C. SEN AND M. JAGANNADHA RAO, JJ. Harish N. Salve, Rajesh Malhotra and Dalip Kumar Malhotra for the Appellant. Soli J. Sorabjee, Iqbal Chagla, Kirit Rawal, R. Karanjawala, S. Ganesh, Ms. Ruby Ahuja, Arunabh Chawdhury and Ms. Manik Karan-jawala for the Respondent. JUDGMENT Rao, J. - Hindustan Lever Ltd. has filed this Civil Appeal under section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 ( the Act ) against the order of the Monopolies Restrictive Trade Practices Commission ( the Commission ). The order is dated 5/6-11-1997 and is passed in Injunction Application No. 336 of 1997 filed in the Main Case No. 405 of 1997. 2. The two respondents are Colgate Palmolive (India) Ltd. and Miss Pallavi S. Desai. The said respondents were the complainants 1 and 2 respectively in the Main Case No. 405 of 1997 which is pending before the Commission. By virtue of the impugned order, certain directions in the nature of temporary injunction have been granted in favour of the respondents- complainants and against the appellant. It is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er toothpaste which is inferior in killing germs, the lip movement, according to the respondents, indicates that the boy was using Colgate though the voice is muted. Additionally, when this muting is done there is a sound of the same jingle as is used in the usual Colgate -advertisement, leaving, according to the complainants, doubts in the minds of the viewers that Pepsodent was being compared with Colgate. 5. On these and other allegations, the complaint was filed by the respon-dents before the Commission relying upon sections 10,36A and 36B of the Act and in particular upon section 36A( vii ) and ( x ) of the Act. The respondents also filed an Injunction Application 336/1997 for grant of temporary injunction under section 12A of the Act. It was contended that the appellant was guilty of unfair trade practice, under section 36A inasmuch as the appellant allegedly adopted, for the purpose of promo- ting sales, use or supply of its goods, an unfair method or deceptive practice by making a representation as stated in section 36A( viii ) and giving false or misleading facts disparaging the goods of the appellant as stated in section 36A( x ). 6. The appellant, whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence between the Pepsodent (old version) and the New Pepsodent marketed by the appellant. As the old one was not superior to Colgate, the new one was also not superior. The appellants also contended before the Commission that the protocols adopted for testing the germ-content were not uniform and that the complainant s protocols were not the correct ones. Adverting to these protocols, the Commission referred to the objection of the appellant, as follows: At this state, it may be noted that the case of the applicants/complainant is that Colgate offered to the respondent that the test of the concerned toothpaste products of both Colgate and the respondent should be carried out by certain experts who should decide their own protocols for the purpose. It appears that the respondent has not agreed to it. [Emphasis supplied] Having stated as above in regard to the protocols, the Commission noticed that so far as the claims of 102 per cent bacterial superiority was concerned, it was a matter which required a highly scientific approach and should be decided by independent experts and it would be hazardous for the Commission to venture even a prima facie opinion. It then re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any reference directly or indirectly in the appellant s advertisement claiming anti-bacterial superiority and also from making any specific quantum of anti-bacterial superiority - till its claim of such anti-bacterial superiority is fully established . This would also be for protecting the consumer s interest. In the last paragraph of the order, the Commission clarified that the injunction would apply whether the reference to Colgate was by any allusion or hint. 12. It is against the above order of temporary interim injunction that this appeal has been preferred. We have heard elaborate arguments by Sri Harish Salve for the appellant and of Sri Soli J. Sorabjee for the 1st Complainant and of Sri Iqbal Chagla for the 2nd Complainant. 13. The point for consideration is : whether the discretionary order of temporary interim injunction granted by the Commission pending the passing of final orders in the injunction application filed by the respon-dents-complainants, is liable to be set aside or modified ? 14. From the facts set out above, it is clear that the Commission has granted a temporary injunction which is of an interim nature and the Commission is yet to pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such practice was likely to affect prejudicially public interest or the interests of traders or consumers generally. 17. On the other hand, it was contended by Sri Soli Sorabjee for the respondent and by Sri Iqbal Chagla for the 2nd respondent that the above contentions are not correct and that this was an appeal under section 55 and the grounds available in the appeal are the same grounds as specified in section 100 of the Code of Civil Procedure, 1908 (before the 1976 Amendment) and that the discretion exercised by the Commission was proper in the circumstances of the case that the claim of the 1st complain-ant was not only under section 36A( x ) but also under section 36A( viii ) and under the latter clause, it was sufficient for the purpose of proving an unfair trade practice that the appellant had made a representation in a firm which purported to be a warranty or guarantee and which was materially misleading or that there was no reasonable prospect that such warranty or guarantee would be carried out. It was also argued that the conduct of the appellant in having voluntarily proposed the appointment of a panel of experts has to be taken into account in deciding wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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