MANU/DE/4494/2019

Equivalent Citation: 2019(80)PTC 573(Del)

IN THE HIGH COURT OF DELHI

CS(COMM) 1229/2018 and CS(COMM) 8/2019
Decided On: 19.07.2019
Appellants: Kamdhenu Limited
Vs.
Respondent: Jindal Steel & Power Limited and Ors.
Hon'ble Judges/Coram:
Rajiv Sahai Endlaw, J.
Counsels:
For Appellant/Petitioner/Plaintiff: S.K. Bansal, Rishi Bansal and Pankaj Kumar, Advs.
For Respondents/Defendant: Parag P. Tripathi, Dayan Krishnan, Sr. Advs., Rohan Ahuja,
Gurpreet Singh Parwanda, Aadhar Nautiyal, Hemant Phalpher, Parth Goswami, Ajit
Warrier, Richa Srivastava, Shijo George, Nayantara Narayan, Dhruv Bhat Nagar, Mishika
Bajpai, Neel Mason, Ridhima Pabbi, Ekta Sharma, Vennela Reddy, Pavit Singh Katoch,
Shashank Mishra, Karishma Sundara, Akshi Rastogi and Vinayak Chawla, Advs.
ORDER
Rajiv Sahai Endlaw, J.
IAs No. 15394/2018 (of plaintiff u/O XXXIX R-1 & 2 CPC), 1099/2019 (of D-5 u/O XXXK
R-4 CPC), 1648/2019 (of D-3 u/O XXXIX R-4 CPC) & 4645/2019 (of D-2 u/O XXXIX R-4
CPC) in CS (COMM.) No. 1229/2018 & IAs No. 213/2019 (of plaintiff u/O XXXIX R-1 & 2
CPC), 2584/2019 (of D-5 u/O XXXIX R-4 CPC), 3024/2019 (of D-7 u/O XXXIX R-4 CPC)
& 3999/2019 (of D- 1 to 3 u/O XXXIX R-4 CPC) in CS (COMM.) No. 8/2019
1 . Only the counsel for the defendants First Construction Council (FCC), ASAPP Info
Global Services Pvt. Ltd. and Pratap Vijaysingh Padode have opposed the confirmation
of the ex-parte injunction. However, the senior counsel for defendant WhatsApp Inc.
has contended that though he is not opposing the merits of the claim of the plaintiffs
but his contention is that the defendant WhatsApp Inc. is incapable of screening the
content or from removing the content already posted.
2. Similarly, the counsel for the defendant YouTube LLC has also contended that one of
the URLs to which objection is taken, does not contain the impugned content.
3. The senior counsel for the defendant Facebook Inc. has also taken a similar objection
and states that one of the URLs to which objection is taken by the plaintiffs does not
contain any impugned content.
4 . It is also stated that there is some ambiguity about the operative part of the order
dated 6th November, 2018 in CS(COMM) No. 1229/2018, inasmuch as there may be
other references to TMT steel bars under the trade mark 'KAMDHENU' otherwise than in
relation to the report of the defendant FCC.

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5 . The only contesting defendants i.e. FCC, ASAPP Info Global Services Pvt. Ltd. and
Pratap Vijaysingh Padode, vide order dated 29th March, 2019 were asked to file an
affidavit disclosing the constitution, the personnel behind and source of funding of the
defendant FCC and also detailing the mode adopted for doing the comparative test
along with all the supporting documents, including of ensuring the purity of the samples
which were used for testing.
6 . In compliance thereof, an affidavit attested on 22nd May, 2019 of the defendant
Pratap Vijaysingh Kadode has been filed, in which he has inter alia deposed (i) that he
is the Managing Trustee of FCC, a registered Trust; (ii) that the said Trust was set up by
him along with Atul Tandan and Tarun Pal, who are also the trustees thereof and none
of them are directly or indirectly connected to any of the Steel Bar Manufacturing
Companies; (iii) that the said Trust receives funding from the defendant ASAPP Info
Global Services Pvt. Ltd. which publishes magazines and none of the shareholders of
which also have any connection with any Steel Bar Manufacturing Companies; (iv) that
no consent was sought from any Steel Bar Manufacturers before conducting the test, as
the said approval would have defeated the very purpose of conducting the test; (v) that
all the samples were procured from the open market from the authorized dealers of the
manufacturers; (vi) that the entire testing process was conducted by Shriram Institute
of Industrial Research, an independent non for profit research institute; and, (vii) that
Shriram Institute of Industrial Research also has not acted at the behest of any Steel
Bar Manufacturing Companies. Along with the affidavit, some documents have been
filed and the contesting defendants, otherwise also have filed documents along with
their written statement.
7 . A look at running page 87 of Volume II of Part-III(B) file containing the said
documents inter alia shows Shriram Institute of Industrial Research to have in their Test
Certificate, described the sample tested as "one sample described as TMT DIA MM-16,
MAKE-Kamdhenu, GRADE 500 was received" and clarified that "the sampling was not
carried out by Shriram Institute of Industrial Research" and the sample particulars
provided in the Test Certificate being based on the declaration "by the party". The Test
Certificate describes the client as defendant ASAPP Info Global Services Pvt. Ltd.
8 . What thus emerges is that the contesting defendants FCC, ASAPP Info Global
Services Pvt. Ltd. and Pratap Vijaysingh Padode have not thus carried out the test
themselves and merely provided samples to Shriram Institute of Industrial Research for
testing and described one of the samples with respect whereto test report has been
given, as that of the plaintiff.
9. Shriram Institute of Industrial Research is not a party to these suits and in the event
of any error/defect being found in the test report, on the basis whereof, the contesting
defendants FCC, ASAPP Info Global Services Pvt. Ltd. and Pratap Vijaysingh Padode
have published content disparaging the product of the plaintiffs, it will be very easy for
the contesting defendants FCC, ASAPP Info Global Services Pvt. Ltd. and Pratap
Vijaysingh Padode to wash their hands off from their liability by merely contending that
they have published on the basis of the report received.
10. The impugned report of Shriram Institute of Industrial Research obtained by the
contesting defendants FCC, ASAPP Info Global Services Pvt. Ltd. and Pratap Vijaysingh
Padode is undoubtedly disparaging of the product of the plaintiffs and no argument
even in that regard has been raised by the counsel for the contesting defendants FCC,
ASAPP Info Global Services Pvt. Ltd. and Pratap Vijaysingh Padode.

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1 1 . The question to be considered at this stage is, whether, when the contesting
defendants FCC, ASAPP Info Global Services Pvt. Ltd. and Pratap Vijaysingh Padode
have not carried out the test and are not accepting responsibility therefore, should they
be permitted to continue disparaging the plaintiffs.
12. In my opinion, the answer has to be No.
13. The counsel for the contesting defendants FCC, ASAPP Info Global Services Pvt. Ltd.
and Pratap Vijaysingh Padode has drawn attention to Asoke Ghosh v. Urmi A. Goswami
MANU/DE/9095/2006 : (2006) 133 DLT 69 paragraph 2, Khushwant Singh v. Maneka
Gandhi MANU/DE/1012/2001 : AIR 2002 Del 58 paragraph 66, Mother Dairy Foods &
Processing Ltd. v. Zee Telefilms Ltd. MANU/DE/0069/2005 : 2005 (80) DRJ 74 : 2005
(30) PTC 219 (Del) paragraph 24 and Fiitjee Limited v. Nitin Jain MANU/DE/4298/2010
to contend that once the plaintiffs have claimed the relief of damages, the same is
sufficient and no injunction should be granted.
14. As far as the said judgments are concerned, what is laid down therein is that there
can be no injunction at pre-publication stage, i.e. censorship, and which was held to be
infringing the fundamental right of freedom of expression. Moreover, Asoke Ghosh &
Khushwant Singh supra were cases of defamation of person, which had already
happened in the print media. As distinct therefrom, this is a case of commercial
disparagement and qua which the Courts, whenever satisfied, have been granting
injunctions. Such cases of disparagement are generally through advertising of
competitors. The only difference is, that here, instead of an advertisement, we have a
test report. However it is the plea of the plaintiffs, that the said test report is at the
behest of competitor of plaintiffs. Independence of those carrying out the test, is still to
be established. Just like continued display of the disparaging advertisement continues
to cause damage, so will the continued display of the impugned report cause continued
damage. Though Mother Dairy Foods & Processing Ltd. supra was a case of
disparagement of goods, but the news report therein was found to be in interest of
larger public. That is not the position here. In Fiitjee Limited. supra, the contents in a
book were not found to be per se defamatory. The judgment distinguishes certain other
judgments cited at Bar in that case, observing that the content therein was per se
defamatory.
15. I am therefore of the opinion that the interim injunction as already granted should
continue during the pendency of the suit, subject to the arguments aforesaid of
WhatsApp Inc., YouTube LLC and Facebook Inc.
16. As far as the objection of WhatsApp Inc. is concerned, the counsel for the plaintiffs
also agrees that WhatsApp Inc. does not screen the contents of the messages which are
sent using its platform. He however states that WhatsApp Inc. should furnish to the
plaintiffs particulars of all the persons who on their WhatsApp have exchanged the
impugned content. However, once the counsel for the plaintiffs has admitted that there
is no screening of messages, WhatsApp Inc. cannot be expected to furnish the
particulars of the subscribers who have exchanged the impugned content.
1 7 . Thus, it is clarified that WhatsApp Inc. are relieved from the directions issued
against it on 6th November, 2018 or 9th January, 2019 in these suits.
1 8 . As far as the objections on behalf of YouTube LLC and Facebook Inc. are
concerned, the print out of the URLs be shown to the Court on the next date of hearing.
19. Thus, the ex-parte interim order in these suits are made absolute till the decision of

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the suits and all other applications except IAs No. 1099/2019 & 1648/2019 in
CS(COMM) No. 1229/2018 are disposed of in terms of above.
2 0 . List IAs No. 1099/2019 & 1648/2019 in CS(COMM) No. 1229/2018 on 28th
November, 2019.
IA No. 2583/2019/2019 (of D-5 u/O. IR-10 CPC) in CS(COMM) No. 8/2019 & 479/2019
(of D-4 for deletion) in CS(COMM) No. 1229/2018
21. The senior counsel for defendant Facebook Inc. states that the relief sought in the
suits can be complied with only by Facebook Inc. and not by Facebook India and thus
Facebook India be deleted.
22. The counsel for the plaintiffs relies on Blueberry Books v. Google India Pvt. Ltd.
MANU/DE/1303/2016 : 230 (2016) DLT 615 : 2016 (67) PTC 1[Del][DB], where in
paragraph 15, the Division Bench of this Court refused to delete Google India inspite of
Google Inc. having also been impleaded, reasoning that at that stage, in view of the
averments in the plaint, no case for deletion was made out.
23. I have enquired from the counsel for the plaintiffs that once the relief claimed by
the plaintiffs in the suits are undertaken to be complied with by Facebook Inc. and it is
contended that Facebook India is incapable of complying with the said relief and does
not have any control over the servers, what purpose will continuing with Facebook India
as a party will serve, save of delaying the suits, inasmuch as experience shows that
more the number of defendants, more the delay in the suit.
24. The counsel for the plaintiffs then contends that in the event of Facebook Inc. not
complying with the directions, there will be no Indian entity before this Court against
which action can be taken.
25. The senior counsel for the defendant Facebook Inc., on instructions, states that
Facebook Inc. has not objected to the jurisdiction of this Court in the present case.
26. Even otherwise, once Facebook India is incapable of complying with the directions
and the same can be done only by Facebook Inc., even if there is any non-compliance, I
fail to see as to how the same will be actionable against Facebook India.
27. The senior counsel for the defendant Facebook Inc. as well as Facebook India has
also handed over a copy of the order dated 30th January, 2018 in CS(COMM) No.
116/2017 from which the appeal before the Division Bench had emanated, to contend
that the suit was dismissed against all intermediaries including Google Inc. and Google
India and FAO(OS)(COMM) No. 97/2018 preferred there against was dismissed by the
Division Bench presided over by the same Hon'ble Judge who had presided over the
judgment cited by the counsel for the plaintiffs.
28. I therefore do not find any advantage to the plaintiffs in continuing with Facebook
India as defendant in these suits. Facebook India is deleted from the array of
defendants in both the suits.
29. An endorsement to the said effect be made by the Court Master in today's date
under his signatures on the Memorandum of Parties.
30. The applications are disposed of.
CS(COMM) No. 1229/2018 & CS(COMM) No. 8/2019

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3 1 . The counsel appearing for Facebook Inc. in CS(COMM) No. 1229/2018 accepts
notice also in CS(COMM) No. 8/2019.
32. Pleadings, if any remaining in the suits be completed.
33. List for framing of issues, if any on 28th November, 2019.
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