vil Appeal No 764 NM of 1988
From the Judgment and Order dated 13111987 of the Monopolies and Restrictive Trade Practices Commission in unfair Trade Practices Enquiry No 76 of 1985
GL Sanghi Parveen Anand SK Mehta Dhruv Mehta SM Satin and Atul Nanda for the Appellant
Anil Dev Singh and Hemant Sharma for the Respondents
The Judgment of the Court was delivered by SHARMA J
This appeal under section 55 of the hereinafter referred to as the Act is directed against the decision of the MonopOlies and Restrictive Trade Practices Commission dated November 13 1987 in the Unfair Trade Practices Enquiry No 76 of 1985 passed under section 36 D1 of the Act forbidding the appellant Company from issuing certain type of advertisement as indicated in the order
The Commission issued a show cause notice under section 36 B of 982 the Act to the appellant Company informing it that a pro ceeding had been instituted for making an inquiry whether the Company was indulging in certain unfair trade practices prejudicial to public interest within the meaning of section 36 A A copy of the notice has been attached to the petition of appeal as Annexure C  wherein it was alleged that i although the Company was manufacturing Novino  batteries in collaboration with Ms Mitsushita Electric Industrial Co Ltd and not with National Panasonic of Japan it was issuing advertisements announcing that Novi no  batteries are manufactured in collabora tion with National Panasonic of Japan using National Panasonic techniques and ii the representation that Novino  batter ies are manufactured by joint venture or collaboration with National Panasonic was false and misleading and thereby causing loss or injury to the consumers
In its reply the Company appellant before us denied to have made any wrong representation in the advertisements
It was asserted that the Company has actually entered into a collaboration agreement with Ms Mitsushita Electric Indus trial Ltd of Japan for the manufacture of dry cell batter ies and was adopting the process for manufacturing Novino  batteries as is employed by Mitsushita Ltd The agreement has been duly approved by the Ministry of Industry Govern ment of India
It is further stated that the Mitsushita Ltd of Japan is better known by its products described by the names National and Panasonic and there is no question of misleading anybody by the description of the Japanese Compa ny by its products
Rejecting the appellant s explanation the Commission passed the impugned order
As is clear from the show cause notice it has been assumed that the appellant Company is manufacturing Novino  batteries in collaboration with Mitsushita Ltd but the question is whether in the circumstances it can claim that it is making batteries in collaboration with National Panasonic of Japan and further whether the act complained of will be covered by the provisions of section 36 B and 36D of the Act authorising the respondent Commission to make an enquiry and issue appropriate directions
The expression unfair trade practice has been defined in section 36 A as a trade practice which adopts any or more of the practices enumerated in the section
It has been contended before us by the learned counsel for the respondent and the judgment 983 under appeal also holds that the case is covered by clauses i and v of section 36 A1 of the Act
The relevant portion of section 36 A is reproduced below 36A Definition of unfair trade practice
In this part unless the context otherwise requires Unfair trade Practice  means a trade practice which for the purpose of promotion the sale use or supply of any goods or for the provision of any services adopts one or more of the following practices and thereby causes loss or injury to the consumers of such goods or services whether by eliminating or restricting competition or otherwise namely 1 The practice of making any statement whether orally or in writing or by visible representation which i falsely represents that the goods are  of a particular standard quality grade compo sition style or model          v represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier
does not have 4
It is the admitted position that National and Panasonic are the names given by the Mitsushita Ltd to some of its products and are not the names of the manufac turing company itself
The advertisements XXX therefore do not state correctly when they claim that the appellant Company is working in collaboration with National and Panasonic
Instead they should have mentioned the Company by its correct name in the advertisements
The question is as to whether these advertisement come within the scope of clauses i and v
The Commission in the impugned judgment has said It is true that the Director Research has not carried out any practical research to discover how far the National  Panasonic Batteries of Japan and the Novino Batteries manufactured by the respondent company vary in or conform to quality benefits and durability and to what extent the use of the names Pana sonic and National to signify 984 collaboration has been confusing for the customer m his choice of Novino Battery
Yet I do feel that bearing in mind the Indian condi tions the use of National and Panasonic to signify collaboration will have a misleading effect on the minds of the common class of customers particularly when Novino Battery is projected in the setting of advertisement exhibit A 1a side by side the National
Panasonic and Technics Batteries
The show cause notice served on the appellant does not take any exception to the use of the word collabora tion in the advertisement in question
The grievance is against the use of the names of the product National and Panasonic in place of the Company which is manufacturing them
The issue thus is confined by the charge in the show cause notice which is very limited in its scope
The Commis sion has taken note of the case of the appellant that since National and Panasonic are well known names in India while their manufacturing company the Mitsushita Ltd is not the advertisements have mentioned the brand names instead of the manufacturing company but has refused to accept this plea as a good defence
We do not agree
The Act as it originally stood did not contain any provision for protection of consumers against false or misleading advertisements or other similar and unfair trade practices
By providing for measures against restrictive and monopolistic trade practices it was perhaps assumed that the consumers also as a result will get a fair deal
However experience indicated otherwise and following the recommendations of a Committee it was considered necessary to amend the Act
In the fast changing modern world of today advertising goods is a well recognised marketing strategy
The consumers also need it as the articles which they require for their daily life are of a great variety and the knowledge of an ordinary man is imperfect
If the manufac turers make available by proper publicity necessary de tails about their products they come as great help to the man in the street
Unfortunately some of the advertisements issued for this purpose make exaggerated and sometime base less representations about the quality standard and per formance with an object of attracting purchasers
It was therefore considered necessary to have statutory regula tions insisting that while advertising the seller must speak the truth
Accordingly sections 36 A to 36 E in part B were inserted in Chapter V of the Act by an amendment in 1984
However the question in controversy has to be answered by 985 construing the relevant provisions of the Act
The defini tion of unfair trade practice in section 36 A mentioned above is not inclusive or flexible but specific and limited inits contents
The object is to bring honesty and truth in the relationship between the manufacturer and the consumer
When a problem arises as to whether a particular act can be condemned as an unfair trade practice or not the key to the solution would be to examine whether it contains a false statement and is misleading and further what is the effect of such a representation made by the manufacturer on the common man Does it lead a reasonable person in the position of a buyer to a wrong conclusion The issue can not be resolved by merely examining whether the representation is correct or incorrect in the literal sense
A representation containing a statement apparently correct in the technical sense may have the effect of misleading the buyer by using tricky language
Similarly a statement which may be inaccu rate in the technical literal sense can convey the truth and sometimes more effectively than a literally correct state ment
It is therefore necessary to examine whether the representation complained of contains the element of misleading the buyer
Does a reasonable man on reading the advertisement form a belief different from what the truth is The position will have to be viewed with objectivity in an impersonal manner
It is stated in Halsbury s Laws of England Fourth Edition paragraphs 1044 and 1045 that a representation will be deemed to be false if it is false in substance and in fact and the test by which the representa tion is to be judged is to see whether the discrepancy between the fact as represented and the actual fact is such as would be considered material by a reasonable representee
Another way of stating the rule is to say that substantial falsity is on the one hand necessary and on the other adequate to establish a misrepresentation and that where the entire representation is a faithful picture or tran script of the essential facts no falsity is established even though there may have been any number of inaccuracies in unimportant details
Conversely if the general impres sion conveyed is false the most punctilious and scrupulous accuracy in immaterial minutiae will not render the repre sentation true
 Let us examine the relevant facts of this case in this background
The Mitsushita Ltd is not a popular name in this country while its products National and Panasonic are
An advertisement mentioning merely Mitsushita Ltd may therefore fail to convey anything to an ordinary buyer unless he is also told that it is the same Company which manufactures products known to him by the names National and Panasonic
If such were the position there would not have been any scope for objection
However in our view the same 986 effect is produced by the impugned advertisements
It has to be remembered that there is no other company with the name of National and Panasonic and there is no scope for any confusion on that score
Where the reference is being made to the standard of the quality it is not material whether the manufacturing Company is indicated by its accurately correct name or by its description with reference to its products
We therefore hold that the erroneous description of the manufacturing Company in the advertisements in ques tion does not attract section 36 A of the Act although we would hasten to add that it would be more proper for the appellant Company to give the full facts by referring to Mitsushita Ltd by its correct name and further stating that its products are known by the names National and Panasonic
The learned counsel for the respondent Commission suggested that the appellant was not entitled to claim collaboration with the Japanese Company on the basis of the agreement mentioned earlier
As the appellant Company is only getting technical knowledge and assistance under the agreement it is not permissible to claim Novino  batteries as the product of joint venture
The argument was rightly repelled on behalf of the appellant on the ground that this aspect cannot be examined in the present case in view of the limited scope of the charges as mentioned in the show cause notice quoted above
If so advised the Commission will have to hold a fresh inquiry after issuing another show cause notice if it desires to pursue this aspect
The learned counsel for the appellant also raised several other points in support of the appeal one of them being that from the facts and circumstances of the case it can not be held that the impugned advertisements are capable of causing any loss or injury to the consumers
In view of our decision as mentioned earlier it is not necessary to deal with the other arguments
For the reasons mentioned above the impugned judg ment is set aside and the appeal is allowed but in the circumstances without costs
NVK Appeal allowed


Summary:
The words  specific moveable property  occurring in article 49 Of the Indian Limitation Act can mean only such specific items of moveable property in respect of which the plaintiff is entitled to claim immediate possession in specie from the defendant who has either wrongfully taken or is wrongfully withholding them from him
A suit by one heir against the others for recovery of his share of the moveable property of a deceased person is not one for a specific moveable property wrongfully taken such as is contemplated by article 49 and must in the absence of any other specific provision in the Act be governed by article 12o and not article 49 of the Indian Limitation Act
Mohomed Raisat Ali vs Musummat Hasin Banu 1893 LR 2o IA 155 relied on
Consequently in a case where the decree passed upon an award without specifying any particular G P Notes or dividing them directed the elder brother to transfer G P Notes of the value of Rs 13200 to the younger brother from out of the G P Notes of the total value of Rs 26500 left by the father in the custody of the former and the younger brother failing to obtain relief by way of execution of the decree brought the suit out of which the present appeal arises against the elder brother for a division of the G P Notes and a direction on him that G P Notes of the value of Rs 13200 might be transferred to him and claimed that the entire period covered by the execution proceeding from its inception till the final disposal by the High Court should be excluded in computing the period of limitation  Held that the suit in substance was one for the division of moveable property held in joint ownership and not for possession of any specific
item of moveable property and as such was governed not by article 49 but by article 120 of the Indian Limitation Act
Gopal Chandra Bose vs Surendra Nath Dutt 1908 12 CWN 1010 distinguished and held inapplicable
812 As the facts and circumstances of the case satisfied the requirements of section 141 Of the Indian Limitation Act in computing the prescribed period of limitation the time covered by the execution proceeding from its inception till its final disposal by the High Court must be excluded