Case: Colgate Palmolive (India) Ltd Vs. Hindustan Lever Ltd

laboratory tests that the complainant has found that representation is not correct and it is on this perspective that Mr. Desai also contended that the entire grievance of the complainant has to be decided on the basis of the evidence at the time of the trial but not at any stage prior thereto. As a matter of fact the Commission itself, as noted above, has recorded such a finding, but after recording the same, came to find about Suraksha Chakra and we find some justification in Mr. Desais criticism as regards the non-application of mind in the matter of passing of an order of injunction as impugned in this appeal. On a perusal of the complaint Suraksha Chakra cannot be said to be within ambit, of the foaming action and has been referred therein only to complete the advertisement portion as an incidental issue and obviously the Commission was persuaded more by the U.S. Trade Commissions Report rather than consideration of the allegations in the complaint itself. 42. Mr. Salve appearing for the respondent/complainant strongly contended that by using Suraksha Chakra in the commercial advertisement specially in Hindi, the appellant has, in fact, targeted the ordinary common man in the Hindi belt so as to give an expression that the toothpaste as matter of fact provides a durable and permanent protection with respect to germs, tooth decay and bad breath to the more so by reason of the fact that the Commission has not returned any finding as regards the three principal issues but passed an order of injunction only as regards the Suraksha Chakra by reason of the specific order of the FTC as noticed above.43. The submission of Mr. Salve at the first blush is rather attractive that at this stage we are not really concerned with the factum of establishment of any truth or falsity but merely a prima facie case or an arguable case resulting in establishment of a prima facie case and in that perspective the issue, therefore, emerges as to whether such a prima facie case has been made out or not - we are however afraid that the answer cannot but be the negative. The Federal Trade Commission was confronted with an invisible shield which was protecting the tooth from a coconut, tennis ball and a piece of stone and it is on this factual back-drop that FTC came to a conclusion that withstanding of the pressure of the coconut or resistance by an invisible shield by reason of the user of the toothpaste would not arise. The situation in the present context is however totally dissimilar. No material object is bouncing back after hitting the tooth by reason of "Suraksha Chakra".misapplied and misread the observations of Federal Trade Commission since their is no factual similarity between the two. Prima facie case or at least arguable case does not and cannot possibly suggest an order of injunction without any factual support. There ought to be some such support on facts without which there would not be any justification for grant of an interim order.44. Mr. Salve next contended that the complaint pertains to vindication of a public right and since the public interest is involved, question of any delay for moving the Commission does not arise and more so, it is a remedy to public wrong and not being a personal relief. We are, however, unable to record our concurrence at this juncture. Public wrong, if any, needs to be assessed and proved, without which question of having an order of injunction would not arise. While it is true that the relief prayed for is statutory in nature but that does not clothe the Commission to pass orders de hors the basic principles of law. 45. In fine, the submission of Mr. Desai as regards the bona fides of the application under Section 12A cannot also be brushed aside and in our view non-consideration thereof by the Commission has resulted in a clear error on the part of the Commission. The fact that within a period of 10 days of the application by the appellant herein-before the Commission, the respondent files the instant complaint with an application for an interim prayer - though, however, this "Suraksha Chakra" admittedly, is available in the commercial advertisement since 1985 and in the visual advertisement in Hindi at least since 1987 - there was no lodgment of any protest or complaint in public interest but it only filed as a backlash on the appellants complaint as noticed above and the motive therein in our view cannot also be ruled out. 46. The appeal preferred by the complainant as against the failure of the Commission to pass orders on the other three elements of the advertisement in our view at this stage cannot be entertained and we record our concurrence with the finding of the Commission that without going through the evidence, it is neither feasible not proper in any event to pass any orders thereon at this juncture. We are dismayed however by the fact that after recording a finding on that score as noticed above, the Commission passed an order of injunction in regard to an issue without however any material on record.47. As a matter of fact there is no evidence of a single consumer being misled and not a whisper as to what constitutes an unfair trade practice pertaining to "Suraksha Chakra". The Commission also thought it fit not to record any reason or justification for the grant of an interim order of injunction in spite of finding as above and before the matter is investigated and complaint is finally heard. This apart, the factum of non-availability of any explanation of more than 13 years delay has also not been delved into by the Commission at all.48. In that view of the matter question of there being any order of injunction at this stage of the proceeding on the face of the finding as passed by the Commission itself does not and cannot arise.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]45. In fine, the submission of Mr. Desai as regards the bona fides of the application under Section 12A cannot also be brushed aside and in our view non-consideration thereof by the Commission has resulted in a clear error on the part of the Commission. The fact that within a period of 10 days of the application by the appellant herein-before the Commission, the respondent files the instant complaint with an application for an interim prayer - though, however, this "Suraksha Chakra" admittedly, is available in the commercial advertisement since 1985 and in the visual advertisement in Hindi at least since 1987 - there was no lodgment of any protest or complaint in public interest but it only filed as a backlash on the appellants complaint as noticed above and the motive therein in our view cannot also be ruled out.The appeal preferred by the complainant as against the failure of the Commission to pass orders on the other three elements of the advertisement in our view at this stage cannot be entertained and we record our concurrence with the finding of the Commission that without going through the evidence, it is neither feasible not proper in any event to pass any orders thereon at this juncture. We are dismayed however by the fact that after recording a finding on that score as noticed above, the Commission passed an order of injunction in regard to an issue without however any material on record.47. As a matter of fact there is no evidence of a single consumer being misled and not a whisper as to what constitutes an unfair trade practice pertaining to "Suraksha Chakra". The Commission also thought it fit not to record any reason or justification for the grant of an interim order of injunction in spite of finding as above and before the matter is investigated and complaint is finally heard. This apart, the factum of non-availability of any explanation of more than 13 years delay has also not been delved into by the Commission at all.48. In that view of the matter question of there being any order of injunction at this stage of the proceeding on the face of the finding as passed by the Commission itself does not and cannot arise.