IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT: TRADE MARK. CS(OS) NO. 2577/2008 and I.A. NOS and 15464/2008

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1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT: TRADE MARK CS(OS) NO. 2577/2008 and I.A. NOS and 15464/2008 CS(OS) NO. 2646/2008 and I.A. NO /2008 Date of Decision : 7th January, GLAXOSMITHKLINE CONSUMER HEALTHCARE LIMITED... Plaintiffs in CS(OS) No. 2577/2008. HORLICKS LIMITED and ANR... Plaintiffs in CS(OS) No. 2646/2008. Through Mr. Arun Jaitely, Sr. Advocate with Mr. Chander M. Lall and Mr. Manish Dhir, Advocates. VERSUS HEINZ INDIA (P) LIMITED... Through SANJIV KHANNA, J: Defendant. Mr. C.S. Sundaram, Mr. A.S. Chandhiok, Mr. A.M. Singhvi, Sr. Advocates with Ms. Anuradha Salhotra, Mr. Rahul Chaudhary, Mr. Sumit Wadhwa, Ms. Bhavna Gandhi, Ms. Rohini Musa, Mr. Abhishek Gupta, Mr. Zafar Inayat and Mr. Anandh Kannan, Advocates. 1. Glaxo Smithkline Consumer Health Care Limited is the sole plaintiff in CS(OS) No. 2577/2008 and plaintiffs No. 2 in CS(OS) No. 2646/2008. Horlicks Limited, United Kingdom, is plaintiff No. 1 in CS(OS) No. 2646/2008. Both suits have filed against M/s Heinz India (P) Limited alleging disparaging advertisements by the defendant, manufacturers of drink/milk mix Complan. The plaintiff(s) are manufacturing the drink/milk mix under the mark Horlicks. CS(OS) No. 2577/2008 deals with print advertisements and CS(OS) No. 2646/2008 deals with moving/video advertisements. 2. The defendant had entered appearance on 12th December, 2008 when CS (OS) No. 2577/2008 was listed for the first time and were on caveat in CS(OS) No. 2646/2008. The defendant has also filed reply along with documents to I.A. No /2008 in CS(OS) No. 2577/ Jurisdiction of this Court to entertain the present suits as a part of cause of action arises in Delhi, is not disputed. The defendant, however, submits that this Court should

2 not entertain the present suits on the principle of 'forum non-convenience' and the parties have been extensively heard on the said aspect and on the aspect of grant of ad interim injunction. Suit Before the Calcutta High Court 4. The plaintiff(s) in August, 2004 had filed a civil suit in Calcutta High Court for injunction etc. against the defendant alleging disparaging advertisement depicting two cups including one cup with the alphabet 'H'. The Complan cup was shown as growing in height in comparison to the cup with the alphabet 'H'. Injunction order was passed against the defendant with the direction to show the advertisement without showing the cup marked with the alphabet 'H'. The defendant introduced another advertisement replacing the alphabet on the second cup with the letter 'X'. Contempt proceedings were initiated against the defendant but the matter is now pending in appeal. Proceedings before the Madras High Court 5. The second litigation was filed by the plaintiff(s) herein in Madras High Court against an advertisement with one cup with the drink complain growing taller and two other cups remaining stagnant. The Madras High Court allowed the defendant to use a comparative cup (but without any letter) along with a Complan cup provided colour of the liquid in the two cups was the same. The defendant was restrained from using the words largest selling brand in the bottom frame. Food or nutritional value of the defendants product complain also came up for consideration and after observing that parties were yet to go for trial, it was observed:- suffice it is point out that the contention of complan that it has more percentage of Milk Protein, prima facie appears to be correct. In such circumstances, there is no reason to conclude that the statement made by complain that it has more Protein and vital nutrients is false and misleading 6. With reference to advertisements of the plaintiff(s) it was observed that the plaintiffs horlicks itself is carrying on Comparative Advertisement. When that being so, it would be unfair to injunct or restrain the Defendant from carrying on Comparative Advertisement. Third suit before the Bombay High court 7. The third suit was filed by the defendant against the plaintiff(s) in the Bombay High Court is in respect of a moving advertisement. Copy of the said advertisement, which is about 30 seconds long, along with the visuals and audio lines has been filed by the defendant herein. In the said advertisement, the two products Complan and Horlicks are visible in baskets held by two mothers along with their sons. The maximum retail price of the two products is stated. It is highlighted that the product of the plaintiff(s) is lower in price. It is the allegation of the defendant in the suit filed before Bombay High Court that the moving advertisement makes disparaging remarks against the defendant product Complan with regard to nutrients and health value in comparison to the plaintiffs products. It is also alleged that the plaintiff(s) herein have advertised their products with specific disparaging reference to the defendants products with the representation that the plaintiff(s) products are proven superior and make a child grow taller, stronger and sharper compared to a child drinking the defendants product. Two suits filed before Delhi High Court and averments

3 8. This is the fourth and the fifth suit between the parties on the question of disparaging advertisements and after Calcutta, Madras and Bombay High Courts these suits have been filed in the Delhi High Court. Plaintiff(s) in CS(OS) No. 2577/2008 have referred to the suit filed by the defendant before the Bombay High Court including the order of the Single Judge dated 31st October, 2008 rejecting the defendants prayer for grant of interim injunction and the fact that the Division Bench has rejected the appeal filed by the defendant. It is alleged that the defendant has in the print advertisements made disparaging remarks by using the words cheap/cheaper with reference to the product of the plaintiff(s) and is,therefore, advertising/representing that the product of the plaintiff(s) is of inferior quality or a sub-standard product. Allegation of false claims with regard to the ingredients, nutritional value or number of nutrients in the two products in comparison is made. 9. In CS(OS) No. 2646/2008, reference is made to the moving advertisement launched by the defendant in which the two products are displayed, with two mothers and their children in a shop discussing nutritional value of the ingredients in the two products. Product of the plaintiff(s) has been described as Sasta, whereas the product of the defendant is a superior product with better quality and more expensive100% milk proteins. Subject matter of the two suits and the present suits. 10. The advertisements in the two suits before the Calcutta and Madras High Courts are distinct and separate from the advertisements, which are a subject matter of the present suit and the Bombay High Court. In the advertisements which are a subject matter or referred to by the Calcutta and Madras High Courts, the product of the competitor was/is not displayed but reference, was/is made to other product to show that the product of the advertiser was/is better and superior. The advertisements subject matter of the suit pending before the Calcutta High Court and Madras High Court bear no direct relation with the advertisements in the present suits but the said litigations are on the question of disparaging advertisements between parties to the present suits. Code of Civil Procedure, Sections 15-21A of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) deal with territorial jurisdiction. Section 16 of the Code, deals with cases for recovery of possession, partition, sale, redemption or foreclosure of mortgage or the termination of any right or interest in an immovable property. In such cases, suit has to be instituted in the Court within local limits of whose jurisdiction the property is situated. We are not concerned with Section 16 in the present case. We are concerned with Section 20 of the Code and the short question is whether this Court should reject the plaints and not proceed, on the ground of forum non-convenience. Contentions on Section 20 of the Code. 12. It was the contention of the plaintiff(s) that principle of forum non-convenience is not incorporated and recognized under the Code. If a part of cause of action has arisen within the jurisdiction of this Court, the plaints cannot be rejected and the plaintiff(s) cannot be asked to approach the Bombay High Court. It was stated that cause of action in the present suits are the disparaging advertisements of the defendant, which are not the

4 subject matter of the suit before the Bombay High Court i.e the alleged disparaging advertisement of the plaintiff(s). Per contra, the defendant argues that principle of forum non-convenience is not alien to Section 20 of the Code and is protected by Section 151 of the Code. It is alleged that the present cases are one of forum shopping and directly a result of the advertisement of the plaintiff(s) herein, which is subject matter of challenge before the Bombay High Court. If the plaintiff(s) can show and advertise comparing the two products and highlight the lower price, the defendant is entitled to protect and advertise that their product is superior and better than the plaintiff(s) product and explain the price difference. Findings 13. Section 151 of the Code protects inherent powers to the Court and right to pass a suitable order in the interest of justice and to prevent abuse of process of Court. Section 151 of the Code recognizes power of the Court to do justice in the facts and circumstances of the case but the said power cannot be exercised to pass an order, which is contrary to or is prohibited by a provision in the Code. When there is an express or implied prohibition in the Code itself, power under Section 151 cannot be exercised to negate or contrary to the provision. When a prohibition exists, section 151 of the Code cannot be applied. In Shipping Corporation of India Limited versus Machado Brothers, reported in (2004) 11 SCC 168, an earlier decision in Ram Chand and Sons Sugar Mills (P) Limited versus Kanaihya Lal Bhargav, reported in AIR 1966 SC1899 was quoted and it was observed as under:- The inherent power of a court is in addition to and complementary to the powers expressly conferred under the Code. But that power will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of Section 151 of the Code, they do not control the undoubted power of the court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the court. 20. From the above, it is clear that if there is no specific provision which prohibits the grant of relief sought in an application filed under Section 151 of the Code, the courts have all the necessary powers under Section 151 CPC to make a suitable order to prevent the abuse of the process of court. Therefore, the court exercising the power under Section 151 CPC first has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition then the court will consider whether such power should be exercised or not on the basis of facts mentioned in the application. 14. It is not disputed by both the parties that principle of forum non- convenience is a part of common law or private international law but the question is whether the said principle can be applied even when a party invokes territorial jurisdiction of a Court and satisfies requirements of Section 20(c) of the Code in the sense that a part of cause of action has arisen in Delhi. This question can be answered by examining whether Section 20 of the Code prohibits and oust applicability of the said principle.

5 15. Section 20 of the Code consists of three parts. First two parts have reference to residence or place of business of the defendant i.e. the party being sued. These two parts, therefore, take into consideration convenience of the defendant. Sub-section (c) stipulates that a suit can be also filed at the location where the cause of action or a part of cause of action has arisen. The place where a plaintiff resides or carries on business is not a relevant consideration for determining and deciding territorial jurisdiction. Thus, while giving dominus litis to the plaintiff to determine the place where he wants to institute a suit alternative options are available, the Code also protects right of the defendant by stipulating that a suit can be only filed where the defendant resides or works for gain or cause of action, wholly or partly arises. 16. The question whether Section 20 is exhaustive and, therefore, prohibits applicability of forum non-convenience has not been directly answered in any decision. The said principle was referred to in Kusum Ingots and Alloys versus Union of India, reported in (2004) 6 SCC 254, in a case wherein the question of territorial jurisdiction of a High Court to maintain a writ petition was examined. The Supreme Court has observed that a High Court may refuse to exercise discretionary jurisdiction by invoking the principle or doctrine of forum non-convenience even if a small part or fraction of part of cause of action has arisen within the jurisdiction of the High Court. The Supreme Court in the said case quoted with approval decisions of the Calcutta High Court in Bhagat Singh Bugga versus Diwan Jagbir Sawhney reported in AIR 1941 Calcutta 670 and Madanlal Jalan versus Madanlal, reported in (1945) 49 CWN 357, which were cases not relating to a writ petition under Article 226 of the Constitution of India. Reference with approval is an indication that the Supreme Court did not consider principle of forum non convenience as alien or contrary to Section 20 of the Code. 17. Principle of forum non-convenience has been also referred to by the Supreme Court in Mosaraf Hossain Khan versus Bhagheeratha Engg. Ltd., reported in (2006) 3 SCC 658 :- 28. We have referred to the scope of jurisdiction under Articles 226 and 227 of the Constitution only to highlight that the High Courts should not ordinarily interfere with an order taking cognizance passed by a competent court of law except in a proper case. Furthermore only such High Court within whose jurisdiction the order of the subordinate court has been passed, would have the jurisdiction to entertain an application under Article 227 of the Constitution unless it is established that the earlier cause of action arose within the jurisdiction thereof. 29. The High Courts, however, must remind themselves about the doctrine of forum non conveniens also. [See Mayar (H.K.) Ltd. v. Owners and Parties, Vessel M.V. Fortune Express (2006) 3 SCC In Ambica Industries Vs. Commissioner of Central Excise reported in (2007) 6 SCC 769 the Supreme Court observed:- 38. We have noticed hereinbefore that if the decision of the High Court in the aforementioned question is taken to its logical conclusion, the same would lead to a great anomaly. It would also give rise to the problem of forum shopping. We may notice some examples to show that the determination of the appellate forum based upon the situs of the Tribunal would lead to an anomalous result. For example, 'an assessee affected by an assessment order in Bombay may invoke the jurisdiction of the Delhi High Court to take advantage of the law

6 laid down by it which may be contrary to judgments of the High Court of Bombay. This cannot be allowed. [See Suresh Desai and Associates v. CIT 1998 (230) ITR 912 at and CCE v. Technological Institute of Textile in (1998) 76 DLT 862 (DB)]. 40. Although in view of Section 141 of the Code of Civil Procedure the provisions thereof would not apply to writ proceedings, the phraseology used in Section 20(c) of the Code of Civil Procedure and Clause (2) of Article 226, being in pari materia, the decisions of this Court rendered on interpretation of Section 20(c) of CPC shall apply to the writ proceedings also. Before proceeding to discuss the matter further it may be pointed out that the entire bundle of facts pleaded need not constitute a cause of action, as what is necessary to be proved, before the petitioner can obtain a decree, is material facts. The expression material facts is also known as integral facts. 41. Keeping in view the expression ``cause of action'` used in Clause (2) of Article 226 of the Constitution of India, indisputably even if a small fraction thereof accrues within the jurisdiction of the Court, the Court will have jurisdiction in the matter though the doctrine of forum conveniens may also have to be considered. However, these cases again are under Articles 226 and 227 of the Constitution of India, though reference is made to Section20 of the Code. 19. Principle of forum non-convenience was, referred to by a Single Judge of this Court in Ansal Buildwell Ltd. v. North Eastern Indira Gandhi Institute of Health and Medical Science, reported in ILR (2005) 1 Del 751 in a petition dealing with Section 9 of the Arbitration and Conciliation Act, 1996 and Section 20 of the Code in the following words:- 25. In the context of forum convenience it may be noted that in an appropriate case, a court may refuse to exercise its discretionary jurisdiction by invoking the said doctrine. While invoking the doctrine of forum convenience a court may refuse to exercise its discretionary jurisdiction notwithstanding that some part of cause of action has arisen within the territorial jurisdiction of the court. 20. Another Single Judge of this Court in Milk Food Limited versus Union Bank of India, reported in 2007 (2) CTLJ 362 (DEL) has accepted that principle of forum nonconvenience is not barred or prohibited and can be applied by courts. The two relevant paragraphs of the said judgment being paragraph 28 and paragraph 41 are quoted below:- 28. Learned Counsel for the plaintiffs also sought to contend that the rule of forum convenience guides the court in deciding objections relating to territorial jurisdiction. In Lohia Starlinger Limited and Anr v. Govt of NCT of Delhi and Ors. (2006) V AD (Del) 732, learned single judge of this Court observed that so far as civil litigation is concerned, it has been held that the same can be instituted in any court where even a part of the cause of action has arisen. However, it has been held by the Apex court that it is not every fact pleaded by a litigant which gives rise to a cause of action and only such facts as are necessary to adjudicate upon the lis would constitute a cause of action conferring territorial jurisdiction. Even if it was found that a part of the cause of action has arisen within the jurisdiction of the court, on the principles of forum non convenience, or otherwise, it may refuse to exercise jurisdiction in the matter. 41. As regards the principle of forum convenience, the position is that the plaintiff's choice of forum is usually not disturbed unless the balance of convenience is strongly in favor of the defendant. In determining whether a more appropriate forum exists, connecting factors, such as those

7 effecting the convenience of parties, expenses involved and the law governing the relevant transactions are to be looked into. The mere fact that a part of the cause of action has arisen within the jurisdiction of the court may itself not be considered to be a determinative factor compelling the court to decide the matter on merits. In determining which of the available forums is the forum convenience in a given matter, the convenience of all the parties had to be seen. In this behalf, reference may be made to the recent judgment of this Court in (India TV) Independent News Service Pvt. Limited v. India Broadcast Live LLC and Ors. (I.A Nos. 651/2007, 1336/2007 and 2611/2007) decided on In the present case, both the plaintiffs and the defendant have branches/offices at Delhi. The bank guarantees were payable at any place including Delhi. Thus, Delhi cannot be said to be a forum non convenience in the present matter. 21. In Moser Bear of India Limited versus Koninklijke Philips Electronics NV and Others, reported in 151 (2008) DLT 180, a Single Judge of this Court was deciding an interim application for grant of anti suit injunction and it was observed that while deciding the said question, appropriate forum or forum non- convenience should be taken into consideration to decide whether the proceedings before the other Court are oppressive or vexatious. However, the Court noticed the distinction between the concepts of anti suit injunction and forum non-convenience and has observed as under:- 7. The concept of anti-suit injunction and forum non convenience require some examination. An anti suit injunction is granted by the court preventing the parties before it from instituting or continuing with proceedings in another court. On the other hand, the doctrine of forum non convenience is invoked by court to not entertain a matter presented before it in view of the fact that there exists a more appropriate court of competent jurisdiction which would be in a better position to decide the lis between the parties. So, in a sense the principle on which an anti suit injunction is imposed is just the reverse of the principle on which the doctrine of forum non convenience is employed. To make it absolutely clear, an example would be appropriate. Assuming that there are two courts A and B at different places and both having jurisdiction in a particular matter, a party may approach court A for anti-suit injunction against the other arty preventing them from instituting a suit or other proceeding in court B. Of course, while considering the grant of an anti suit injunction, court A would take into account as to which of the two courts is the more convenient forum. However, when a party approaches court A and the defendants takes up the plea that the court A is forum non conveniens and that the matter ought to be more appropriately dealt with by court B, then court A, invoking principles of forum non conveniens, may refuse to entertain the matter presented to it and direct the parties to approach court B being the more convenient forum. Thus, it is seen that in case for anti suit injunction, one court grants an injunction restraining the parties from approaching another court. Whereas in case of doctrine of forum non convenience, the court before whom the matter is presented, itself refuses to entertain the same and directs the parties to approach the other court being the more appropriate and convenient forum. It must also be kept in mind that the court granting an anti suit injunction must otherwise have jurisdiction over the matter. Similarly, the court rejecting a matter on the principle of forum non convenience must otherwise also have jurisdiction to entertain the same. This is so because if the court in either case does not have jurisdiction then, it cannot deal with

8 the matter and consequently, it can neither grant an anti- suit injunction nor pass an order refusing to hear the matter on the plea of forum non convenience. 22. As stated above, Section 20 of the Code gives dominus litis to the plaintiff to file a suit in the courts located at a place where defendant resides or works for gain or where cause of action, partly or wholly arises. However, it is also equally well settled that in spite of Section 20 of the Code, parties by a contract can confer sole or exclusive jurisdiction to courts at one location which otherwise has jurisdiction and exclude jurisdiction of other courts. In other words, it is accepted that Section 20 of the Code does not bar or prohibit parties from entering into a contract or mutual understanding that courts only at a particular location will have exclusive jurisdiction to decide the disputes and oust jurisdiction of courts located at other locations. The only condition is that the exclusive or the sole Court should otherwise have territorial jurisdiction to decide the disputes in terms of Section 20 of the Code (Refer A.B.C. Laminart versus A.P. Agencies, reported in 1989(2) SCC 163). The legal position, therefore, recognizes that Section 20 of the Code does not bar or prohibit parties from entering into a mutual arrangement restricting territorial jurisdiction of the court which can entertain legal proceedings. Section 20 of the Code, therefore, stipulates that plaintiffs have dominus litis to determine and decide the location where they want to institute a suit but this can be restricted by a mutual contract. 23. In view of the above interpretation of Section 20 of the Code, it cannot be said that the principle of forum non-convenience is alien, barred or prohibited by Section 20 the Code. Section 20 of the Code indicates and specifies the courts which can have jurisdiction. Principle of forum non- convenience does not confer jurisdiction on a court contrary to Section 20 of the Code but applies when a court otherwise has jurisdiction but for valid, sound and good reasons does not wish to entertain a suit. Section 20 of the Code, does not prohibit or bar the principle of forum non-convenience. 24. Sections 22 to 25 of the Code relate to transfer of cases. Sections 24 and 25 of the Code reads as under:- 24. General power of transfer and withdrawal. (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and (i) try or dispose of the same; or (ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or (iii) retransfer the same for trial or disposal to the Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under sub- section (1), the Court which 1[is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. (3) For the purposes of this section, (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) proceeding includes a proceeding for the execution of a decree or order.] (4) The Court trying any suit transferred or withdrawn

9 under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. (5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it. 25. Power of Supreme Court to transfer suits, etc. (1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State. (2) Every application under this section shall be made by a motion which shall be supported by an affidavit. (3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it. (4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case. (5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding. 25. Sections 22 and 23 of the Code are not applicable. High Courts cannot transfer a case to another High Court under Section 24 and power vests with the Supreme Court under section 25 of the Code. Plaintiff(s) had relied on Indian Overseas Bank versus Chemical Construction Company, reported in (1979) 4 SCC 358. The present suits cannot be transferred. But the plaints can be returned for forum non-convenience, in which case the court does not want to exercise jurisdiction. The said decision and section 25 of the Code do not deal with forum non-convenience. 26. Section 10 of the Code is a mandatory provision, which stipulates that trial in a subsequent suit should be stayed where the matter in issue is also directly and substantially an issue between the previous suit between the same parties or parties litigating under the same title. The matter in issue before the Bombay High Court is the alleged disparaging advertisement of the plaintiff(s) herein against which the defendant herein has sought injunction and prayed for other reliefs. The subject matter of the present suit is alleged disparaging advertisements by the defendant, which are questioned and challenged by the plaintiff(s) in the present two suits. The cause of action in the suits are different advertisements but the legal issue and inter connection between the alleged infringing advertisements both by the plaintiff(s ) herein and by the defendant herein are undeniable and even admitted in the plaints. The legal principles to be applied are the same and any conflicting or contrary judgments will cause confusion, plethora of further litigation or even new or counter advertisements and then another round of litigation. Section 10 of the Code does not bar passing of interim orders. Section 10 does not bar jurisdiction but merely lays down a rule of procedure. Section 10 of the Code promotes the objective to obviate contradictory judgments, avoid multiciplity of proceedings, delay and prevent protraction of litigation. It does not conflict with the principle of forum nonconvenience. Both powers serve the same purpose and complement each other, just as

10 Section 10 of the Code does not bar or delude the power of the Court to consolidate two or more suits. 27. The term forum non-convenience is a general power to stay actions and not entertain litigation on the ground that some other court or forum having jurisdiction is the appropriate forum for trial of the action. It is applied in the interest of both parties and when the ends of justice require that the cause should be tried in a different forum. The said principle is generally applied in cases of Private International Law. It requires two stage enquiry. In the first stage, we are concerned whether there is an alternative competent forum, which is more appropriate and second stage requires answer to the question, whether it is in the interest of justice and equity to relegate the parties to the said forum (See Chesire and Norths Private International Law, 13th Edition, Part III, Chapter 13 at Page 336). 28. The second requirement indicates the discretionary character of the said principle. The principle can be only invoked when the alternative forum is clearly and distinctly more appropriate than the forum of which jurisdiction is invoked. The principle has to be rarely invoked and when court is fully satisfied that the discretion should be exercised. 29. Multiplicity of proceedings and desire to avoid conflicting or confusing judgments is a part of the principle of forum non convenience. This alone may not be sufficient. The power should not be exercised unless the court comes to a conclusion that the case can be tried most suitably in the alternative forum and it is in the interest of all parties, in the ends of justice and there are grounds not to entertain a party. Each case has to be decided on its own circumstances keeping several factors in mind including economic strength of the parties, cost involved, availability of evidence and witnesses etc. The principle can be applied rarely and with caution, when advantages and interest of justice clearly outweigh proceedings before a court which in law has jurisdiction but another court having concurrent jurisdiction is the more natural and the plaintiff has deliberately avoided the said forum. There should be a clear, real and a distinct disadvantage, to negate right of the plaintiff to decide the forum or the court where he wants to institute a suit. No fixed or strait jacket principal can be laid down but the general objective is to prevent a party from deliberately creating a situation which will cause confusion or conflicting judgments, while keeping in mind that the Court should not lightly change the forum and compel the plaintiff to go to another court and increase his inconvenience and expense. Balance of convenience is a material consideration, albeit not always a sole criteria justifying application of the principle of forum nonconvenience. However, when the plaintiff abuses his position as arbiter litis to deliberately choose a forum to defeat ends of justice, then in exceptional circumstances, the court can exercise the power to ex debito justitiae to prevent a proceeding from becoming vexatious or oppressive. 30. Paragraphs 30 and 33 in CS(OS) No. 2577/2008 and paragraphs of CS(OS) No. 2646/2008 are in substance the same and make appointed reference to the proceedings before the Bombay High Court. For the purpose of deciding the present issue, I am reproducing below contents of paragraphs of CS(OS) No. 2577/2008:-

11 30. In yet another attempt at unfairly competing in the market place, the defendant recently initiated a suit against the plaintiffs being Suit No in the Honble Bombay High Court. The said suit was initiated against an advertisement of the plaintiffs in which only correct and truthful representations were made about the plaintiffss product and truthful comparisons were made with the defendants products. These comparisons concerned the actual price difference between the two products, the actual ingredients in both products (23 in both) and the relative claims made by the parties in their advertising. 31. In the aforementioned suit the defendant also pressed for ad-interim relief seeking restraining orders against the plaintiffs legitimate and honest advertising. Vide an order dated October 31, 2008, the prayer for ad-interim relief of the defendant was rejected by Honble R.Y. Ganoo J. of the Bombay High Court. The Honble Court inter alia held that the plaintiffs had filed an affidavit to the effect that its product also had 23 ingredients. The Honble Court held: The explanation given by the defendants that the basic ingredients like wheat, barley, etc. would contain the ingredients in its natural form is prima facie required to be accepted. If this be so, the total number of nutrients viz. 23 is prima facie required to be accepted. If this be so, there is not question of disparaging the product of the plaintiffs on that count. Despite these observations of the Honble Bombay High Court, the defendant in its impugned advertisement has mischievously and contemptuously shown the nutrients in the plaintiffss products as 19 as compared to 23 in the defendants products. 32. The defendant preferred an appeal against the aforementioned order of the learned Single Judge of the Bombay High Court, to the Honble Division Bench of the Bombay High Court, which has also been rejected. The notice of motion is now listed for arguments later this month. No interim relief has been granted in favour of the defendant. Having failed through the process of law, the offending advertisements complained of herein is clearly an attempt on the part of the defendant to reopen the same question by falsely alleging that the better product and lower priced health drink of the plaintiffs is of poor and sub- standard quality. 33. It is quite apparent that having failed to achieve success in its nefarious venture, through the proper and legal process, the defendant has now decided to adopt this mischievous and dishonest means of getting back on the plaintiffs by introducing the two impugned advertisements. The conduct of the defendant is indeed reprehensible. 31. It is apparent from the plaint itself that the proceeding before the Bombay High Court and the proceedings now initiated before the Delhi High Court are inter-twined and inter related. There is direct co-relation between the advertisements of the plaintiff(s), which are subject matter of the suit filed by the defendant before the Bombay High Court and the advertisements of the defendant subject matter of the present suit. The plaintiff(s) in the present suits have admitted the connection in the aforesaid paragraphs of the plaints. The plaintiff(s) have along with the list of documents filed the copy of the application and the pleadings filed before the Bombay High Court as well as the order passed by the learned Single Judge. The said order refers to principles, which have to been taken into consideration for deciding the question whether the advertisements of the plaintiff(s) are disparaging and the respective claims of the parties with regard to the nutrients and also

12 claim of the plaintiff(s) that it is a lower priced drink and the claim of the plaintiff(s) herein that their product makes a child taller, stronger and sharper. Product of the plaintiff(s) and defendant are displayed in the advertisement with two mothers and their son. Contention of the defendant is that if plaintiffs advertisement is not disparaging, then by applying the same yardstick the defendants advertisements are not disparaging. 32. Defendant herein has alleged that the present case is one of forum shopping as advertisements of the plaintiff(s) herein are subject matter of challenge before the Bombay High Court and the plea and the legal submissions being made in the said case are contrary to the plea of legal submissions being raised by the same party before this Court. 33. An examination of the advertisements subject matter of challenge in these suits and the advertisement subject matter of challenge before the Bombay High Court could reveal that they are interconnected, inter related, if not a counter blast. The plaintiff(s) herein are aware of their legal stand and submission before the Bombay High Court. Plaintiff(s) are defending their advertisement in which the product of the defendant herein is also displayed but is projected to be as product which is higher in price. The plaintiff(s) also claim that their product is superior in quality and one which makes a child grow taller, stronger and sharper. Advertisements of the plaintiff(s) and the defendant have to be judged by applying the same parameters and legal standards to determine and decide whether any advertisement is disparaging and crosses the acceptable line. Relief of injunction is discretionary and conduct of both parties is relevant. The two advertisements cannot be kept in a water tight compartments and have to be judged by applying the same yardstick and standards. Parties should not be permitted and allowed to raise different and dramatically opposite pleas in different courts as a matter of convenience. 34. The order passed by the Single Judge of the Bombay High Court was taken up in appeal but the Division Bench refused to interfere with the said order on the ground that it was an ad interim interlocutory order and it has been observed that the said order would not influence the learned Single Judge while hearing the motion for final disposal of the interim application. For this purpose, the Division Bench noticed that the matter was fixed for hearing before the Single Judge on 18th December, Interim application of the defendant is still pending before the Bombay High Court. Passing any interim order the present suits will result in and requires expressing opinion on the advertisement subject matter before the Bombay High Court. Conduct of both parties is a relevant circumstance to taken into consideration. The Bombay High Court has passed an ad interim order but the application for injunction is pending and is yet to attain finality. The defendant also relies upon the observations of the Division Bench. The plaintiff(s) rely upon the order of the single judge. 35. During the course of hearing, parties were asked to take instructions whether the matter can be referred to Mediation. Learned counsel for the defendant on instructions had agreed to modify some of the sentences/contents, without prejudice to their rights for reference to Mediation. Learned counsel for the plaintiff(s), however, felt that the defendant must make further modifications. During the course of arguments,

13 modification in the advertisement taken out by the plaintiff(s) was also suggested and to some extent Learned counsel for the plaintiffs agreed with the same, without prejudice to their rights. I refrain from giving specifics as it can cause prejudice to cases of both the parties but it is apparent that the advertisements of the defendant are counter blast to the advertisements, which have been taken out by the plaintiff(s). The cause in the two suits should be adjudicated and decided in one forum. Both parties have financial resources and are capable of fighting litigation in Bombay High Court. It is also hoped that the managements and their counsels will break the ice and sit down and talk to end this battle of advertisements, which is avoidable. 36. The present case, therefore, falls within one of those rare cases where a party has deliberately and intentionally invoked jurisdiction of a court, which has jurisdiction to entertain a suit under Section 20 of the Code but the interest of justice and equity requires that the plaintiff(s) should be asked to approach the court where parties are already litigating. The twin conditions for applying the principle of forum non-convenience are satisfied in the present case. Any decision on the advertisement of the defendant will necessarily call for examination and comments on the advertisement of the plaintiff(s), which is subject matter before the Bombay High Court. Any comment or observation in the orders passed by the Delhi High Court will cause confusion, possibility of conflicting decisions, which will cause prejudice to the parties. Interim application for injunction is still pending before Bombay High Court. The present case, therefore, is an exceptional case wherein principle of forum non-convenience should be applied. The plaintiff(s) were aware and have consciously and deliberately invoked jurisdiction of this Court, in view of the litigation and issues pending before the Bombay High Court. 37. It is appropriate to repeat that principle of forum non-convenience can be applied rarely when there are overwhelming facts and interest of justice requires that a Court that has jurisdiction should not adjudicate the suit/legal proceedings. The said principle is not to be applied liberally but with great caution and care and only when failure to do so, shall result in abuse of process of Court and cause grave injustice. 38. The plaints are accordingly directed to be returned and rejected. The plaintiffs, if advised, are at liberty to file a fresh suit(s) before the Bombay High Court. There is no order as to Costs. It is clarified that any opinion expressed on merits is only for the purpose of deciding and passing the present order and are not binding and will not influence any other or future litigations between the parties. JANUARY 7, 2009 Sd./- SANJIV KHANNA,J