MANU/DE/0011/2009

Equivalent Citation: 156(2009)DLT330, 2009(39)PTC 498(Del)

IN THE HIGH COURT OF DELHI

CS (OS) Nos. 2577 and 2646/2008 and I.A. Nos. 15433 and 15647
Decided On: 07.01.2009
Appellants: Glaxosmithkline Consumer Healthcare Limited and Horlicks
Limited and Ors.
Vs.
Respondent: Heinz India (P) Limited
Hon'ble Judges/Coram:
Sanjiv Khanna, J.
Counsels:
For Appellant/Petitioner/plaintiff: Arun Jaitely, Sr. Adv., Chander M. Lall and Manish
Dhir, Advs
For Respondents/Defendant: C.S. Sundaram, A.S. Chandhiok and Abhishek Manu
Singhvi, Sr. Advs., Anuradha Malhotra, Rahul Chaudhary, Sumit Wadhwa, Bhavna
Gandhi, Rohini Musa, Abhishek Gupta, Zafar Inayat and Anandh Kannan, Advs.
Case Note:
Intellectual Property Rights - Doctrine of "Forum non-convenience" -
Sections 10, 20, 24, 25 and 151 of Civil Procedure Code, 1908 - Two suits
were filed against defendant Heinz India alleging disparaging
advertisements by Heinz, manufacturers of drink/milk mix "Complan" -
First suit filed by GSK as a sole plaintiff, alleged that disparaging remarks
were made by using the words "cheap/cheaper" in reference to the product
of GSK in the print advertisement - Second suit filed by GSK as a co-plaintiff
along with Horlicks Limited referred to the moving advertisement launched
by Heinz in which the two products were displayed, with two mothers and
their children in a shop discussing the nutritional value of the ingredients
in the two products - Product of the plaintiff(s) Horlicks was described as
"Sasta", while "Complan" was stated to be a superior product with better
quality - Defendant Heinz submitted that the High Court of Delhi should not
entertain the present suits on the principle of 'forum non-convenience' and
that the parties had been extensively heard on the aspect as also the grant
of ad interim injunction - The proceedings and outcome of the suits before
the Calcutta, Mumbai and Madras High Courts were also alluded - plaintiffs
GSK & Horlicks in the suits contended that the principle of "forum non-
convenience" was not incorporated and recognized under the CPC - Heinz,
on the contrary contented that the principle of "forum non-convenience"
was not alien to Section 20 of CPC and is protected by Section 151 of the
Code - On the question of the High Court of Delhi being "forum non-
convenience", the Court observed that while exercising the power under
Section 151 CPC, it must be considered 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 must consider whether such power should
be exercised or not on the basis of facts - The question whether Section 20
prohibits applicability of "forum non-convenience" has not been directly
answered in any decision - However, mulling over decisions that deal with

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the issue, the Court noted that Section 20 of the Code gives dominus litis to
the plaintiff to file a suit in the courts located at a place where the
defendant resides or works for gain or where cause of action, partly or
wholly arises - However, 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 - 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 - Further held, Since a High Court cannot transfer a case to
another High Court under Section 24 and power vests with the Supreme
Court under Section 25 of the Code, hence the present suits cannot be
transferred but the plaints can be returned for 'forum non-convenience' -
Proceeding before the Bombay High Court and the proceedings now
initiated before the Delhi High Court are inter-twined and inter related -
The cause in the two suits should be adjudicated and decided in one forum
- Present case falls within one of those rare cases where a party
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 the parties are already litigating - The Court
also stated that the possibility of confusion or conflicting decisions, causing
prejudice to the parties could not be ruled out, in view of the interim
application for injunction still being pending before the Bombay High Court
- The present case, therefore, is an exceptional case wherein principle of
forum non-convenience should be applied - Plaints were returned and
rejected with advise that plaintiff's were at liberty to file fresh suits at
Bombay High Court
JUDGMENT
Sanjiv Khanna, J.
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.
15237/2008 in CS(OS) No. 2577/2008.
3. 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 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

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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 defendant's 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
defendant's 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 defendant's product. Two suits filed before Delhi High Court and
averments
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
defendant's 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,

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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 expensive
100% 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, 1908
11. Sections 15 and 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 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

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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 v.
Machado Brothers reported in MANU/SC/0276/2004 : AIR2004SC2093 , an earlier
decision in Ram Chand and Sons Sugar Mills (P) Limited v. Kanaihya Lal Bhargav
reported in MANU/SC/0263/1966 : [1966]3SCR856 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.
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.
1 6 . 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 v. Union of
India reported in MANU/SC/0430/2004 : 2004(186)ELT3(SC) , 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

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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 v. Diwan
Jagbir Sawhney reported in MANU/WB/0075/1941 : AIR1941Cal670 and Madanlal
Jalan v. 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 v. Bhagheeratha Engg. Ltd. reported in
MANU/SC/8067/2006 : 2006CriLJ1683 :
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 MANU/SC/8083/2006 : AIR2006SC1828 .
1 8 . In Ambica Industries v. Commissioner of Central Excise reported in
MANU/SC/7727/2007 : 2007(213)ELT323(SC) 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 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 MANU/DE/0455/1998 : 1998 (230) ITR
912 at and CCE v. Technological Institute of Textile in MANU/DE/0270/1998
: 76(1998)DLT862 ].
4 0 . 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

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 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 Section 20
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 MANU/DE/2936/2005 : ILR (2005) Delhi 751 in a petition
dealing with Section 9 of the Arbitration and Conciliation Act, 1996 and Section
of the Code in the following words:
2 5 . 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 v. Union Bank of
India reported in MANU/DE/8271/2007 has accepted that principle of forum
non-convenience 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
(Delhi) 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 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 10.07.2007.

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 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 v. Koninklijke Philips Electronics NV and Ors.
reported in MANU/DE/0633/2008 : 151(2008)DLT180 , 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 party 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 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

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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 v. A.P. Agencies reported in MANU/SC/0001/1989 : [1989]2SCR1a ). 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 - 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;

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 (b) 'proceeding' includes a proceeding for the execution of a
decree or order.]
(4) The Court trying any suit transferred or withdrawn 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 v.
Chemical Construction Company reported in MANU/SC/0013/1979 : [1979]3SCR920 .
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

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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 multiplicity of proceedings, delay and prevent
protraction of litigation. It does not conflict with the principle of 'forum non-
convenience'. Both powers serve the same purpose and complement each other, just
as 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 Cheshire and North's Private
International Law, 13th Edition, Part III, Chapter 13 at Page 336).
2 8 . 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 dis-advantage, 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 non-convenience'. 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.
3 0 . Paragraphs 30 and 33 in CS(OS) No. 2577/2008 and paragraphs 28-31 of
CS(OS) No. 2646/2008 are in substance the same and make appointed reference to

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the proceedings before the Bombay High Court. For the purpose of deciding the
present issue, I am reproducing below contents of paragraphs 30-33 of CS(OS) No.
2577/2008:
30. In yet another attempt at unfairly competing in the market place, the
defendant recently initiated a suit against the plaintiffs being Suit No. 3308
in the Hon'ble 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 plaintiff's product and truthful
comparisons were made with the defendant's 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.
3 1 . In the aforementioned suit the defendant also pressed for ad-interim
relief seeking restraining orders against the plaintiff's legitimate and honest
advertising. Vide an order dated October 31, 2008, the prayer for ad-interim
relief of the defendant was rejected by Hon'ble R.Y. Ganoo J. of the Bombay
High Court. The Hon'ble Court inter alia held that the plaintiffs had filed an
affidavit to the effect that its product also had 23 ingredients. The Hon'ble
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 Hon'ble Bombay High Court, the defendant
in its impugned advertisement has mischievously and contemptuously shown
the nutrients in the plaintiff's products as 19 as compared to 23 in the
defendant's products.
32. The defendant preferred an appeal against the aforementioned order of
the learned Single Judge of the Bombay High Court, to the Hon'ble 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

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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 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 defendant's 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, 2008.
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, 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

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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.
3 7 . 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.

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