Reckitt Benckiser (India) Ltd. v. Hindustan Unilever Ltd

2013 of the High Court of Calcutta in the suit filed by the plaintiff against the defendant with respect to the then advertisement of the defendant with respect to its Lifebouy Soap, holding:- (a) that the advertisement of the defendant did not show the product Dettol Antiseptic Liquid of the plaintiff in the proper perspective; (b) the use of the defendant’s product Lifebouy is predominantly for cleansing; on the contrary the plaintiff’s product Dettol Antiseptic Liquid is predominantly for germ eradication and is not declared to be used as a cleanser;

(c) the defendant however claimed in the advertisement that its product Lifebouy Soap has germ removing capacity;

(d) the plaintiff’s product Dettol Antiseptic Liquid is recommended for use as a supplement to bathing soap; (e) showing the plaintiff’s product Dettol Antiseptic Liquid in an inappropriate dilution and context and then declaring that it has no germ protection capacity whereas the defendant’s product Lifebouy Soap has nearly 100% germ removal capacity was disparaging of the plaintiff’s product; (f) therefore the then advertisement of the defendant was unfair, prejudicial to the plaintiff and not with honest intention and lowered the reputation of the plaintiff’s trade mark, offending Section 30 of the Trade Marks Act, 1999; and, (g) restraining the defendant from showing the advertisement or any version or adoption thereof in any media till the disposal of the suit.

(iii) drew attention to the judgment dated 14th March, 2014 of the Division Bench of the High Court of Calcutta dismissing the appeal preferred by the defendant and further holding that Dettol Antiseptic Liquid of the plaintiff and Lifebouy Soap of the defendant were unlike products and comparison thereof was unfair;

(iv) drew attention to the judgment dated 13th May, 2013 supra on the application for interim relief in CS(COMM) No.629/2016 and contended that what has been held therein with reference to the advertisement impugned therein applies to the advertisement impugned in the present suit as well;

(v) the defendant in its written statement admits that the plaintiff’s Dettol Antiseptic Liquid is not intended to be a substitute for bar soap, shower gel or liquid hand wash and is only a supplement to the same;

(vi) the defence of the defendant in CS(OS) No.237/2018 is the same which has not been accepted in the earlier judgments of the High Court of Calcutta and in the judgments of this Court;

(vii) reliance was placed on Hindustan Unilever Limited Vs.

Reckitt Benckiser (India) Limited (2014) 207 DLT 713 (DB) being RFA(OS) No.50/2008 supra between the parties, and it was contended that the defendant therein had taken a plea that unlike products i.e. an antiseptic soap and a cosmetic soap could not be compared; it was argued that the defendant is now itself doing the same and cannot be permitted to do so.

(viii) reliance was placed on Dabur India Limited Vs. Colortek

(ix) reference was also made to Section 4 of the Drugs and

Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and to the Drugs and Cosmetics Act, 1940, to contend that there is a prohibition against misleading advertisements relating to drugs, as Dettol Antiseptic Liquid is.

12. One of the contentions of the senior counsel for the plaintiff being, that the advertisement impugned in CS(OS) No.237/2018 is also violative of the orders/judgments in earlier suits being CS(COMM) No.629/2016 of this Court and the suit before the Calcutta High Court relating to the same products, it was enquired from the senior counsel for the plaintiff, how, for violation of an order/judgment already existing in favour of the plaintiff, yet another suit was maintainable and whether not the appropriate remedy available to the plaintiff was of execution or under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 (CPC). The senior counsel for the plaintiff contended that the said remedies were not available and/or were not availed of since the advertisement impugned in CS(OS) No.237/2018 was different from the advertisement impugned in the earlier proceedings, of orders wherein violation, in spirit, was argued. It was contended that the defendant was otherwise in violation, having made only minor/inconsequential/ineffective changes in the advertisement. At this stage, the senior counsel for the defendant contended that the advertisement impugned in CS(OS) No.237/2018 was compliant with the conditions stipulated in the judgment dated 13th May, 2013 on the application for interim relief in CS(COMM) No.629/2016.

13. It was also contended by the senior counsel for the plaintiff that while the Dettol Antiseptic Liquid was subject to price control, Lifebouy Soap, being a cosmetic was not subject to price control. Attention was also drawn to the memorandum of FAO(OS)(COMM) No.62/2018 preferred by the defendant against the judgment on the application for interim relief in CS(COMM) No.629/2016 to contend that what is being argued now by the defendant before this Court was the case of the defendant in appeal which was not pursued.

14. Per contra the senior counsel for the defendant contended (i) that the arguments of the plaintiff now were the same as were made during the hearing of the application for interim relief in CS(COMM) No.629/2016 and which were not accepted and interim relief sought in terms whereof not granted in the judgment dated 13th May, 2013; (ii) that the said judgment was not confined to advertisement impugned in CS(COMM) No.629/2016 but was of general application qua the two products; vide said judgment the advertisement impugned in CS(COMM) No.629/2016 was not restrained and only certain changes directed to be made therein and the advertisement impugned in CS(OS) No.237/2018 is compliant of those directions; (iii) attention in this respect was also drawn to the observations in the earlier order dated 11th April, 2018 supra of the Division Bench against the earlier order dated 6th April, 2018 granting ad interim relief to the plaintiff; (iv) though the plaintiff earlier also had sought restraint against comparison, contending the two products to be dissimilar but no such restraint was granted; (v) in the earlier judgment of this Court, only the identification of the plaintiff’s product in the advertisement of the defendant was restrained and the advertisement of the defendant impugned in CS(OS) No.237/2018 does not identify the comparative products as of the plaintiff; (vi) the plaintiff did not prefer any appeal against the judgment dated 13th May, 2013 on the application for interim relief in CS(COMM) No.629/2016; (vii) the advertisement impugned in CS(OS) No.237/2018 is what was permitted in the said judgment; (viii) that the advertisement of the defendant impugned in CS(OS) No237/2018 targets those consumers who are using antiseptic liquid only in their bath water and are not using soap and promotes soap as opposed to antiseptic liquid; (ix) the advertisement of the defendant impugned in CS(OS) No.237/2018 is to encourage consumers to use soap and does not denigrate the product of the plaintiff; (x) the plaintiff cannot be permitted to re-argue; (xi) the advertisement impugned in CS(OS) No.237/2018 does not claim that the plaintiff’s product Dettol Antiseptic Liquid does not have germ killing ability; it rather says that the same will remove the germs only from the bathing water; (xii) the judgment of the High Court of Calcutta is on different facts and does not bind this Court; (xiii) the judgment of the High Court of Calcutta, to the extent holding that the advertisement of the defendant comparing two unlike products is bad, is in the teeth of the judgment dated 13th May, 2013 on the application for interim relief in CS(COMM) No.629/2016 permitting such advertisement; (xiv) reliance is placed on Dabur India Limited supra to contend that the plaintiff’s claim of having in the 81.9% market share of the antiseptic liquid market cannot mean the reference in the impugned advertisement to antiseptic liquid to be a reference to the plaintiff; (xv) reliance is placed on Procter & Gamble Home Products Vs. Hindustan Unilever Ltd. 2017 SCC OnLine Del 7072, Dabur India Limited Vs. Wipro Limited 2006 SCC OnLine Del 391, Marico Limited Vs. Adani Wilmar 2013 SCC OnLine Del 1513, Havells India Ltd Vs. Amritanshu Khaitan 2015 SCC OnLine Del 8115, Puro Wellness Pvt. Ltd. Vs. Tata Chemicals Ltd. 2019 SCC OnLine Del 10766 and Dabur India Limited Vs. Emami Ltd. 2019 SCC OnLine Del 7809 to contend that the advertisement being commercial speech is protected and is to be restricted only if the same is false, misleading, unfair or disparaging; (xvi) truthful comparisons are permissible; and, (xvii) the defendant in the subject advertisement has nowhere shown that a sick child becomes well after taking a bath with the defendant’s soap and has not shown antiseptic liquid in a bad light.

15. I have considered the rival contentions.

16. The High Court of Calcutta in judgment dated 23rd 2013 inter alia held as under:- “ADVERTISEMENT NO. – III This advertisement does not show the product of the plaintiff in the proper perspective. The use of the defendant’s product is predominantly for cleansing. The plaintiff’s product Dettol Antiseptic liquid is predominantly for germ eradication. It is not declared to be used as a cleanser. The defendant, however, claims that it’s product has germ removing capacity. Moreover, the plaintiff’s product is recommended for use as a supplement to bathing soap, gel etc. Showing the plaintiff’s product in an inappropriate dilution and context and then, declaring that it has no germ protection capacity whereas the defendant’s product ‘Lifebuoy Soap’ had nearly 100% germ removal capacity, was in my opinion disparaging the defendant’s product. That too, showing the context “while bathing” in small font. Therefore, the advertisement was unfair, prejudicial to Reckitt not with honest intention and aired at lowering the reputation of the defendant’s trade mark, offending Section 30 of the Trade Marks Act, 1999. In those circumstances I pass an order of injunction restraining the defendant from showing the above advertisement or any version or adaptation thereof in any media till the disposal of the suit. The application G.A. 942 of 2013 connected with C.S. 92 of 2013 is allowed.”

17. The Division Bench of High Court Calcutta in judgment dated 14th March, 2014 inter alia held as under:- “The third advertisement was published in the print media in such a fashion that a sentence was divided into two halves. Even if we take both parts together we would find, Lifebuoy would claim better germ protection than Dettol antiseptic liquid while bathing. However, when we see the Lifebuoy soap, it was claimed, Lifebuoy gives better germ protection than ordinary soap. Dettol and lifebuoy would have two different area having two different effect. Lifebuoy is a cosmetic whereas Dettol is an antiseptic liquid, Lifebuoy is used during bath that one would get the effect by rubbing it on the skin. Dettol might claim that one would get good protection in case they use diluted Dettol while bathing. We are not concerned with the advertisement of Dettol making such claim. When it would come before us we would definitely consider the same. These are two unlike products, the way it was compared was certainly an unfair attempt. Learned Judge restrained the advertisement, we do not find any scope to interfere.”

18. I thus enquired from the senior counsel for the defendant, whether not the High Court of Calcutta vide judgments aforesaid and which have attained finality, even though on applications for interim relief in a suit which was stated to be still pending, has restrained the defendant from comparing its Lifebouy Soap to the plaintiff’s Dettol Antiseptic Liquid and if so, how could the defendant, in the advertisement impugned in CS(OS) No.237/2018, compare the two.

19. I may in this context observe that I have in Procter & Gamble Home Products Private Limited supra inter alia held that (i) the only fetter on comparative advertising is that it does not unfairly denigrate, attack or discredit other’s product; however while assessing so, the law of defamation would apply; (ii) the fundamental right of advertiser under Article 19(1)(a) has to be balanced with the constitutional right of the competitor under Article 21 of the Constitution of India to the reputation of its goods and the test of proportionality has to be applied; (iii) the right to protect own reputation is not to be misunderstood as right to be not spoken against or right to be not criticized; (iv) reliefs for disparaging advertising have to be restricted to gross cases; (v) the impact of the impugned advertisement on the consumer has to be seen; and, (vi) the courts are not equipped to return a finding on comparative merits of two competing products and if are to get into the said domain, would necessarily have to return a judicial determination, which of the two competing products is better. However the question of applying what was held therein, while adjudicating the application for interim relief in CS(OS) No.237/2018 does not arise since there have been earlier litigation between the parties herein and the orders/judgments wherein bind the parties and the test to be applied herein would have to be whether the advertisement impugned in CS(OS) No.237/2018 violates the reasoning in any of the judgments/orders in the earlier litigation.

20. The senior counsel for the defendant contended that though the High Court of Calcutta in the judgments aforesaid held the two products to be different and comparison thereof to be unfair but this Court in the May, 2013 in the application for interim relief in CS(COMM) No.629/2016 did not hold so and rather permitted comparative advertising of the two products and only required the defendant to make certain changes/deletion in the advertisement impugned therein. It was argued that this Court thus cannot on the basis of the judgments of the High Court of Calcutta restrain comparison in the advertisement impugned in CS(OS) No.237/2018.

21. To consider the aforesaid contention, it is deemed apposite to set out below the relevant part of the judgment dated 13th May, 2013 on the application for interim relief in CS(COMM) No.629/2016: “4. iv. Plaintiff is the manufacturer of the famous antiseptic liquid DETTOL for over 70 years. ‘Dettol’ antiseptic liquid has an unparalleled medical history of capturing over 85 % of the market in India in this segment. v. The active ingredient of ‘Dettol’ liquid is chloroxylenol (PCMX). The other ingredient includes isopropyl alcohol, pine oil, castor oil soap, caramel, water basically used for first aid purpose. The exclusive attribute of the said trademark is – its amber gold colour and the fact that it becomes milky when diluted in water. Also, the packaging of DETTOL is distinct, having a sword on the pack that acts as a mnemonic for fighting against germs and infection.

XXXXXXX x. The peculiar features that have been copied are: a. visual of a liquid that is being poured is of the same colour as that of the plaintiff’s product. b. The liquid is poured from a bottle which is virtually identical to that of the plaintiff’s antiseptic liquid bottle. c. The liquid when poured into water becomes milky exactly like the plaintiff’s product. d. Thereafter, the advertisement claims plaintiff’s product to be completely ineffective in warding off germs whereas shows that lifebuoy gives “100% germ protection.” xi. Virtually identical advertisement was issued by the Defendant’s group in South Africa and by a detailed order passed by the Advertising Standards Authority of South Africa, the respondent therein (defendant herein) was directed to withdraw the claims made by it. xii. The language used by the father of the sick child in the advertisement emphasising on “nahane ke paani mein ‘do dhakkan’ antiseptic liquid” clearly indicates towards Dettol. xiii. No other liquid except ‘Dettol’ create a cloud formation when diluted in water. xiv. The disclaimer flashing below the screen in the television commercial is also very vague and blurred.

63. Adverting to the facts of the present case, having gone through the commercial not only in its text (as reproduced above) but also having watched it on a DVD, the question here is whether the advertisement disparages or denigrates the antiseptic liquid of the plaintiff and also whether it only seeks to project the superiority of the defendant's LIFEBUOY soap over an ordinary antiseptic liquid? The advertisement begins with the scene showing a sick child lying with a few toys around in the display and the doctor entering the house and commenting that he has been invited yet again. Thereafter, the doctor inquires about the hygiene habits of the child and the doctor asks: “kya ye nahata hai roz”, to which the mother of the child replies: “haan nahane ke paani mein do dhakkan antiseptic liquid be daltehai” and the doctor mocking and ridiculing in reply says:“aap bhee nahane mein sirf do dhakkan, use balti toh bimar nai padegi, paani ke kitanu shayad nikal jayen, lekin body ke, yeh yahan se yahan, fir zukam, khansi, flu”. In the meanwhile, the commercial runs to demonstrate a lady pouring brown liquid with a tilted bottle in the bucket of water. The mother of the child then proceeds to ask the doctor: “to nahane mein isse better? And the doctor replies:“100% germ protection, Advanced Lifebuoy” and then appears two different shields of protection, green signifying Dettol and Red signifying Lifebuoy wherein, the green side is left with a few germs and the red shows “kill of all”. Once again lifebuoy is shown to have excellent germ killing capability whilst an antiseptic liquid is completely ineffective. The voice-over also indicates the same. It is obvious that the advertisement displays the said so called "antiseptic liquid" in bad light and as something harmful. Thereafter, the advertisement proceeds with the introduction of the defendant's LIFEBUOY soap and the manner in which it spreads a protective red wall thereby removing and dissipating the germs.

65. With aforesaid discussion, it is ostensibly clear that the advertisement disparages the plaintiff's antiseptic liquid and it is not an advertisement which seeks merely or only to promote the superiority of the defendant's „LIFEBUOY‟ soap over an ordinary antiseptic liquid. When the commercial is displayed before the public at large, the basic principle that is followed is that the public tries to find the connectivity and the impact that advertisement probably creates on them. If ‘X’ would raise the standards of its product by claiming the rivals products „Y‟ to be bad and not effective displaying similar/ comparative attributes of the two, the same would be bad in law. If it were a case of mere promotion of superiority of the defendant's product, alone, the plaintiff would not have had a case as that would have only betokened a permissible "better" or "best" statement. The advertisement comprises of two parts; one which denigrates and disparages the product of the plaintiff and the other which promotes the purported superiority of defendant's LIFEBUOY soap. There is thus a hint of some malice involved in the commercial in respect of the defendant’s product - indeed, it would be appropriate to delete certain relevant attributes of the defendant’s advertisement which clearly hits on the plaintiff’s product and portrays the same in bad light. Without a doubt comparative advertising is beneficial as it increases consumer awareness and therefore, it is permissible but not by pulling down the reputation of your competitor by showing its product in debauched light. Moreover, advertising is a medium through which an advertiser can establish his brand in the market, but at the same time there are certain set of laws that cannot be deserted. Denigrating or causing direct harm to one’s product which has attained appreciation in its genre in terms of usage and application, would amount to slander, which would also cause great prejudice to the public interest, as the question is not of deciding which product is better, but also of public awareness. Because, misleading and disparaging advertisement would not only mellow down the faith of the public but would also result in misleading them.

68. Therefore, I am of the view that the defendant can telecast the advertisement only after deleting the following attributes as under: a. remove the ‘toys’ in the advertisement. b. remove the phrase “two dhakkans” and the particular portion featuring the lady shown pouring liquid in the bucket by holding the bottle of the antiseptic liquid in her hand. c. Remove the shot showing the cloud formation. d. Since green is the colour majorly associated with ‘Dettol’, therefore also change the colour scheme showing the comparison between the two products in the television commercial and change the green colour to a different shade.

69. I am, therefore, inclined to grant ad interim relief to the plaintiff and as against the defendant thereby restraining the defendant from telecasting the impugned advertisement. However, the defendant will be well within its rights to telecast the same only after following the conditions as envisaged in paragraph 68 (a) to (d) of the said judgment. Defendant is also restrained from inserting or adding any such kind of piece/feature in the advertisement which would otherwise directly or indirectly result in disparaging the said product of the plaintiff till the final disposal of the case at hand.”

22. In my view, on a reading of the relevant part aforesaid of the May, 2013 does not show this Court to have held anything different from what has been held by the High Court of Calcutta in the judgments aforesaid, for it to be said that the view of this Court is irreconcilable to that of the High Court of Calcutta. It is also significant that while the appeal preferred by the defendant against the judgment of the High Court of Calcutta was dismissed on merits by the Division Bench of that Court, the appeal preferred by the defendant against the judgment dated 13th May, 2013 on the application for interim relief in CS(COMM) No.629/2016 of this Court, was withdrawn by the defendant.

23. I am also of the view that the principle of comity of courts [India Household & Healthcare Limited Vs. LG Household & Healthcare Limited (2007) 5 SCC 510 and Sterling Agro Industries Limited Vs. Union of India AIR 2011 Del 174 (FB)] requires this Court to, while adjudicating the controversy as has arisen, endeavour to show due respect to the judgments of the High Court of Calcutta especially when relating to the same products and entailing similar issue as for adjudication herein. If this Court were to expressly permit the defendant to, notwithstanding the judgments of the High Court of Calcutta restraining comparative advertising, not grant any injunction in CS(OS) No.237/2018, thereby permitting the defendant to compare its product with that of the plaintiff and which two products have been held by the High Court of Calcutta to be dissimilar, the same would amount to this Court permitting the defendant to violate the order of the High Court of Calcutta. The judgments/orders of the High Court of Calcutta though may not bind this Court, bind the defendant.

24. I may in this context also notice that the judgment dated 14th March, 2014 of the Division Bench of the High Court of Calcutta is subsequent in point to the judgment dated 13th May, 2013 of this Court on the application for interim relief in CS(COMM) No.629/2016.

25. The senior counsel for the defendant in this context referred to the judgment dated 11th April, 2018 of the Division Bench of this Court in FAO(OS) (COMM) No.62/2013 preferred against the order dated 6th April, 2018 of ad interim injunction in CS(OS) No.237/2018 and wherein the judgments aforesaid of the High Court of Calcutta were noticed and inspite of the same the order dated 6th April, 2018 of ad interim injunction was set aside.

26. Undoubtedly so. However the Division Bench in the judgment dated 11th April, 2018 supra set aside the order dated 6th April, 2018 only on the ground that the same had been passed without completion of pleadings and while remanding the application for interim relief in CS(OS) No.237/2018 for decision afresh, did so with liberty to the parties to raise all grounds available, as clarified in subsequent order dated 1st May, 2018 in Review Petition No.183/2018 preferred with respect to judgment dated 11th April, 2018. In view of the same no benefit can be taken by the defendant of the judgment dated 11th April,

2018.

27. The defendant, in the advertisement impugned in CS(OS) No.237/2018 having compared its Lifebouy Soap to plaintiff’s Dettol Antiseptic Liquid (as evident from use of the words “USSE STRONG), the plaintiff has a prima facie case. Even otherwise I find the advertisement impugned in CS(OS) No.237/2018 to be violative of the spirit of the judgment dated 13th May, 2013 on the application for interim relief in CS(COMM) No.629/2016; vide the said judgment, hint of malice was found in the then advertisement of the defendant showing defendant’s Lifebouy Soap to be having excellent germ killing capability whilst showing an antiseptic liquid in bad light and as something harmful and completely ineffective. In the advertisement subject matter of CS(OS) No.237/2018 also, the female protagonist shown acting as a doctor is shown as dissuading the male protagonist from pouring antiseptic liquid in bath water and further shown to be claiming that adding antiseptic liquid in the bath water will leave germs on the body while Lifebouy Soap will remove all the germs. The advertisement does not claim that both, antiseptic liquid in bath water and soap should be used. The advertisement impugned in CS(OS) No.237/2018 also has the same hint of malice albeit in different form, as existed in advertisement impugned in CS(COMM) No.629/2016 and has the same impact, which was restrained vide judgment dated 13th May, 2013 in CS(COMM) No.629/2016.

28. Needless to state that once the advertisement impugned in CS(OS) No.237/2018 is found to be prima facie disparaging of the product of the plaintiff and found to be in violation of the earlier orders/judgments binding on the defendant, the plaintiff will suffer irreparable loss and injury unless interim relief sought is granted.

29. The balance of convenience is found to be in favour of the plaintiff and against the defendant since the defendant for the last one and a half years is not even airing the advertisement.

30. It is not as if these advertisements are aired in a particular city only. The advertisements are aired on television channels having national coverage and even if not having national coverage, are aired on various other electronic platforms having viewership throughout the country. It is thus not as if the defendant, in Calcutta would be bound by the judgment of the Calcutta High Court and in Delhi would be entitled to act in contravention thereof.

31. I thus allow IA No.4428/2018 of the plaintiff under Order XXXIX Rules 1&2 of the CPC in CS(OS) No.237/2018 by restraining the defendant till the decision of the suit from airing the subject advertisements.

32. That brings me to the only other aspect of adjudication at this stage i.e. whether CS(OS) No.237/2018 is to be separately tried or the finding therein is to be returned in accordance with the findings after trial in CS(COMM) No.629/2016.

33. In this context I highlight that the senior counsel for the defendant during the hearing has contended that the directions contained in the May, 2013 on the application for interim relief in CS(COMM) No.629/2016 are of general application and not confined to the advertisement subject matter thereof as well and has yet further contended that the advertisement impugned in CS(OS) No.237/2018 is compliant with the conditions in the said judgment. The senior counsel for the defendant having contended so, it follows that the findings on the issues aforesaid framed in CS(COMM) No.629/2016 on the basis of trial therein, would govern the outcome of CS(OS) No.237/2018 as well and there is no need for separate trial in CS(OS) No.237/2018.

34. However since no specific issues has been framed in CS(OS) No.237/2018 on the plea of the plaintiff, of the products of the plaintiff and the defendant being dissimilar the defendant is not entitled in advertisement of its product compare the same with the product of the plaintiff, it is deemed appropriate to frame the following additional issues as arising for consideration in both CS(COMM) No.629/2016 as well as CS(OS) No.237/2018:-

(iv) Whether the product Dettol Antiseptic Liquid of the plaintiff is of a different genre and class then the product Lifebouy Soap of the defendant so as to be not fit for comparison with the product Lifebouy Soap of the defendant? OPP

(v) Whether the comparison in the advertisement impugned in

CS(COMM) No.629/2016 and in CS(OS) No.237/2018 of a antiseptic liquid with a bath soap, is unfair and amounts to disparagement of the product of the plaintiff? OPP

35. It is clarified that the issue framed in CS(OS) No.237/2018 qua reliefs of damages etc. other than those of injunction would include the reliefs owing to damages if any suffered by the defendant on account of advertisement impugned in CS(OS) No.237/2018 also.

36. It is further clarified that while granting costs if any of the suit in pursuance to the findings in the consolidated judgment in CS(COMM) No.629/2016 and CS(OS) No.237/2018, the costs till this stage in CS(OS) No.237/2018 would also be included.

37. It is yet yet further clarified that pursuant to the consolidation of the two suits, the plaintiff shall be entitled to file additional affidavit/s of examination in chief either of the same witnesses as already examined or of additional witnesses. CS(COMM) No.629/2016 and CS(OS) No.237/2018 having been so consolidated for the purposes of trial and further proceedings, to be hereafter listed together on each and every date of hearing.

38. List for further appropriate orders on 16th June, 2020.

RAJIV SAHAI ENDLAW, J. APRIL 22, 2020 ‘pp’