Vikramajit Sen, J.:— The Plaintiff has filed this Suit for permanent and mandatory injunction, being aggrieved by the Defendant's television commercial which depicts a woman in an advanced stage of pregnancy needing urgent medical assistance during a train journey. The doctor calls for hot water and is handed a cake of soap which she rejects, stating that an antiseptic soap is needed. It is not in dispute that the soap which was handed over to the doctor is identifiable by viewers as the Plaintiff's product, namely, Dettol Soap. The doctor further states in the commercial that “at a time like this, you do not need just antiseptic, you need a protector”. The Defendant's ayurvedic soap is then shown and it is concurrently stated that it is a body ‘rakshak’ soap, the first ayurvedic soap that completely removes all seven kinds of terms and protects from infection. The Plaintiff's grievance is that this commercial disparages its Dettol Soap. It is averred that the intention behind the commercial is malicious, especially in view of the trade literature which shows that Dettol Brand sales are about 30-35 crores out of a total sales of Rs. 230 crores. The Plaintiff has vehemently stressed that Dettol is the leader in brand equity.
2. On 14.2.2003 the Defendants had been restrained from broadcasting any advertisements/television commercials or brochures containing a soap of saffron colour. The Defendant had filed an application under Order XXXIX Rule 4 for vacating the injunction. The Plaintiff had filed an application for initiating contempt proceedings against the Defendant for the broadcast of this commercial after the issuance of ex-partead interim injunction. Both these applications had been withdrawn on 28.3.2003 The Plaintiff's application for ad interim injunction shall now be disposed of by these Orders.
3. Clerk & Lindsell on Torts draws a distinction between malicious prosecution and defamation, in that “defamation protects the Plaintiff's reputation, while malicious falsehood protects the Plaintiff's interest in his property or trade”. In its chapter on Libel and Slander, American Jurisprudence, Second Edition, Volume 50 declares that -” Generally, the publication of any false and malicious statement which tends to disparage the quality, condition, or value of the property of another, and which causes him special injury or damage, is actionable A cause of action for defamation generally does not arise in favour of one whose merchandise or products are criticized, not for the purpose of obtaining a competitive advantage, but merely to express displeasure or dissatisfaction therewith, nor is an advertisement actionable which does no more than state a claim that the plaintiff's goods are inferior to those of the defendant It is firmly established that malice, express or implied, in the making of the slanderous statement is an essential ingredient of a cause of action for slander of title.” Halsbury's Laws of England, Fourth Edition, Volume 45 defines tort as ‘civil rights of action which are available for the recovery of unliquidated damages by persons who have sustained injury or loss from acts, statements or omissions of others in breach of duty or contravention of a right imposed or conferred by law rather than by agreement’. In Timothy White v. Gustav Mellin, 1895 AC 154, the House of Lords ruled that an action for libel and defamation or slander of goods of a rival trader would not lie and no injunction to restrain the defendant ought to be granted despite the fact that the defendant sold the plaintiff's product affixing thereto a label stating that the defendant's product was far more nutritious and healthy than any other. The House of Lords stated that to maintain a cause of action for slander of goods the plaintiff must prove (a) that the statement is disparaging to the plaintiff's goods; (b) that it is false and (c) that it has caused special damage to the plaintiff. It found that none of these has been proved and that the defendant's label was a mere trade puff and would be so regarded by the purchasing public. I would add that so long as a statement is substantially truthful, a claim for defamation or slander to goods would not be granted.
4. It should be noted that in the present case no claim for damages has been preferred. Only a Suit for injunction has been filed. It appears to me that in these circumstances the claim for damages would be barred by the principles enshrined in Order II Rule 2 of the Code of Civil Procedure. In the absence of the primary and substantive claim, the relief of injunction would ordinarily be barred. Leave to file such an action has not been obtained.
5. The central issue is whether the Defendant could be held to have disparaged the Plaintiff's product even though no false statements have been made by the Defendant. As I see it, the T.V commercial has the effect of making the viewer alive to two factors-firstly, that Dettol Soap is not an antiseptic and, secondly that the Defendant's Ayush Soap is an antiseptic soap and a protector from infection. In these circumstances the second factor has not been agitated, and these orders should not be construed as granting an imprimatur to the Defendant's soap as possessing antiseptic qualities.
6. Mr. Dave, who appears for the Defendant, has drawn my attention to the fact that Dettol Soap is marketed as a toilet soap under IS:2888-1983 and not as an anti-bacterial toilet soap which falls in the classification IS: 11479-1985. The Plaintiff's soap Dettol is necessarily, therefore, a cosmetic as defined in Section 3(aaa) of the Drugs and Cosmetics Act, 1940. Dettol soap is neither labelled nor marketed as an anti-bacterial toilet soap “ or as an antiseptic soap” but is simply labelled as a soap which “helps ensure general skin cleanliness and high standard of personal hygiene”. He has vehemently emphasised that in contradiction to this soap, “Dettol liquid” is manufactured under a license issued under the Drugs Act and is marketed as an antiseptic germicidal. The Defendant's case is that its soap Ayush is based upon the ayurvedic system of medicine and is manufactured under a drug license granted by the Director of Drugs, Tamil Nadu.
7. On a reading of the plaint I find the statement significant that the “con sumers perceive Dettol soap as strong and effective in maintaining personal hygiene and regard it as an efficient antiseptic soap that kills harmful germs and bacteria and ensures good health and hygiene It is submitted that Dettol Soap has earned the consumers’ confidence because it has been tried and tested by the consumers inducing a belief in them that Dettol soap has all the properties that an antiseptic soap for personal hygiene must have. It is further submitted that Dettol soap conforms to the high and strict standards prescribed by the Bureau of Indian Standards (BIS) for antibacterial soaps” (underlining has been added by me). In my opinion, the Plaintiff's claim that its soap has been disparaged is entirely indefenceable. If a competitor makes the consumer aware of his mistaken impression, the Plaintiff cannot be heard to complain of such action. I find it difficult, nay impossible, to hold a party liable for libel when all that has been stated by the competitor is the truth. Truth is always a complete defence against any assault or challenge regardless of whether any damage is sustained as a result of it. It is indeed unfortunate that the Government has not established an authority armed with sufficient powers to put a stop to false advertising. It is not difficult to distinguish between claims that are exaggerated and those which are false; the latter should be stopped by a Regulatory Authority. The public perception is that Dettol soap shares the same medicinal and curative qualities as the Dettol liquid. It matters little whether this misunderstanding has been contrived by the manufacturer or has developed in the consumers mind independently. However, in the present case it is the Plaintiff's own averment that this belief has been induced by it and nevertheless it is sanguine enough to expect discretion to be exercised in its favour. If any party, such as the Defendant, helps in correcting the error, it commits no illegality. The tortious injunction, which is the backbone of the present action, is predicated on falsehood, and in the present circumstances, the falsehood can be laid at the door of the Plaintiff and not of the Defendant. Once this conclusion is arrived at, it is not possible to grant any injunctory relief.
8. I have already mentioned that in my view the prescription contained in Order II Rule 2 is fatal to the present Suit. Apart from this, it is trite to state that dis cretionary relief is not available to a party which does not disclose all material facts and does not act with diligent expedition. My attention has been drawn to the fact that the Plaintiff had complained against the impugned advertisement to the Ad vertising Standards Council of India (ASCI) on 30.11.2002 After hearing the par ties, the complaint was rejected by a decision dated 17.1.2003 Quite obviously, the Plaintiff was hopeful of getting some relief in that forum and, therefore, did not file the present Suit earlier than it did. These events have been suppressed by the Plaintiff. It must be realistically prudent to apprehend that an ex-partead interim in junction would have not been granted in the face of the rejection of the Plaintiff's complaint by a specialised body such as the ASCI. While dealing with the accrual of the cause of action in paragraph 19 of the plaint, while there is mention of a consumer survey conducted in October, 2002, there is a total blackout regarding the proceedings before the ASCI. Such a material and significant suppression can only lead to be indicative of misleading the Court and on this score alone would completely defeat the Suit. It has been alleged by the Defendant that the T.V com mercials have been widely broadcast since June, 2002. In Reply it has been stated that the Plaintiff was unaware of these advertisements since they were telecast in South India. It is also been contended on behalf of the Plaintiff that rather than rushing to the Court, it was considered wise and proper to conduct a market survey to ascertain how the impugned commercial was viewed and received by the consumers. I cannot accept this version since it is quite evident to me that the present Suit has only been filed after the unsuccessful and futile complaint filed by the Plaintiff and its futile foray before the ASCI. Failure to disclose all relevant facts defeats the demand for discretionary relief. The Plaintiff has also indubitably approached this Court after considerable delay and, therefore, has disentitled itself to the grant of discretionary relief.
9. Section 41(h) of the Specific Relief Act stipulates that injunctory relief would not be granted where there is an equally efficacious remedy available in an alternative forum. It is not in dispute that the M.R.T.P Commission could have ad judicated upon the present dispute. The decision of the Hon'ble Supreme Court in Lakhanpal National Ltd. v. M.R.T.P Commission & Anr., (1989) 3 SCC 251 is in structive in this regard, as also for the test enunciated therein viz. that the solution as to whether a particular representation is condemnable as an unfair trade prac tice is to ascertain whether it contains a false statement and is misleading and the effect it has on the common man. The Plaintiff's explanation is that it has the right to elect which relief it should pursue. In view of Section 41(h) this is a fallacious contention. The Defendant has drawn attention to the fact that the Plaintiff had ap proached the Commission on earlier occasions but had failed in its efforts and it is for this reason that it has preferred to come to this Court. Mr. Tyagi has sought support on the decision in Reckitt & Colman of India Ltd. v. Kiwi T.T.K Ltd., 63 (1996) DLT 29 : 1996 PTC 393 and in particular to the 4th consideration in para graph 11 thereof. It is his submission that the Defendant cannot while saying his goods are better than the Plaintiff's say that the latter's goods are bad. If this oc curs, it is guilty of slandering the Plaintiff's goods. I am unable to accept this argu ment for the simple reason that what the advertisement brings out, to the obvious discomfort of the Plaintiff, is that contrary to the belief induced in the public by the Plaintiff the Dettol soap is not an antiseptic soap. Reliance is also placed on my judgment in Rainforest Cafe, Inc.…Plaintiff; v. Rainforest Cafe & Ors.…Defendants., 2001 (21) PTC 353 :’ 2001 (91) DLT 508. I am unable to find any similarity in the facts. The dispute in that case was whether the Defendant was entitled in law to open a restaurant named Rainforest. It was my opinion that the public recollection would be linked to the Defendant's restaurant with the Plaintiff's international chain which I found to be misleading and, therefore, impermissible. However, if the public has a recollec tion which is erroneous on essential facts, no action would lie where this er roneous recollection is sought to be removed. Learned counsel for the Plaintiff had gone to the extent of submitting that even if Dettol Soap was not efficacious for what it is held out to achieve, if the public perceives it to be so, it is not open to any person to remove this mistaken belief. The argument must be unequivocally rejected as devoid of merit.
10. For these manifold reasons, I find no merit in the application and it is dis missed with costs of Rs. 10,000/-.