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PETITIONER: COLGATE PALMOLIVE (INDIA) LTD.

       Vs.

RESPONDENT: HINDUSTAN LEVER LTD.

DATE OF JUDGMENT:       18/08/1999

BENCH: B.N.Kirpal, Umesh C. Banerjee

JUDGMENT:

BANERJEE, J.

     These  two appeals under Section 55 of the  Monopolies and  Restrictive Trade Practices Act ( hereinafter  referred to  as the ‘MRTP Act’) are directed against the order of the Monopolies and Trade Practices Commission under Section 12 A of  the MRTP Act dated 30th April, 1998 in matter No.   UTPE 415  of 1997.  The matter pertains to colgate toothpaste,  a product  of Colgate Palmolive India Limited and by reason of a  complaint  from M/s.  Hindustan Lever Limited  being  the Appellant  in the 2nd appeal.  Whereas CA No.2620 of 1998 is against  the order of the Commission containing an order  of restraint  as  regards  the display of the  ring  round  the family   as  "Suraksha  Chakra"   in   Colgate   Palmolive’s hoardings,  print advertisements and T.V.  commercials,  the CA No.3288 of 1998 filed by M/s.  Hindustan Lever Limited is against  the order of refusal on the part of the  Commission to  put a total ban on the product of the Colgate  Palmolive as   noticed   above.   Before   adverting  to   the   rival contentions,  be  it  noted  that   the  M.R.T.P.   Act   as originally  framed  did  not  confer any  power  on  to  the Commission  to grant temporary injunction during the  course of  inquiry.  The Sachhar Committee report however, recorded that  power to issue temporary injunction order ought to  be made available to the Commission in order to give effect and strengthen  the jurisdiction and authority of the Commission and  it is by reason therefor the legislature thought it fit to  incorporate  Section 12A in the body of the Act by  MRTP Amendment   Act  1984  conferring  such   a  power  to   the Commission.   While it is true that the conferment of power, under  Section  12A,  has very wide  ramifications  but  the legislature  was  itself conscious enough to record  in  the body  of  the  section certain in-built requirements  to  be fulfilled  in  order  to  clothe  the  Commission  with  the authority  and  jurisdiction  in the matter of grant  of  an order  of  injunction  and it is on  this  perspective  that Section  12A ought to be noticed at this juncture.   Section 12A  reads as below:-- "12A Power of the Commission to grant temporary injunctions-

     (1) Where, during an inquiry before the Commission, it is proved, whether by the complainant, Director General, any trader or class of traders or any other person, by affidavit or otherwise, that any undertaking or any person is carrying on,  or  is  about  to carry on,  any  monopolistic  or  any restrictive, or unfair, trade practice and such monopolistic

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or restrictive, or unfair trade practice is likely to affect prejudicially  the  public interest or the interest  of  any trader,  class  of  traders or traders generally or  of  any consumer or consumers generally, the Commission may, for the purposes of staying or preventing the undertaking or, as the case  may  be,  such person from  causing  such  prejudicial effect,  by order, grant a temporary injunction  restraining such undertaking or person from carrying on any monopolistic or   restrictive,  or  unfair,   trade  practice  until  the conclusion of such inquiry or until further orders.

     (2)  The provisions of rules 2A to 5 (both  inclusive) of  order  XXXIX of the First Schedule to the Code of  Civil Procedure,  1908 (5 of 1908) shall, as far as may be,  apply to  a  temporary injunction issued by the  Commission  under this section, as they apply to a temporary injunction issued by  a  Civil Court, and any reference in any such rule to  a suit  shall be construed as a reference to an inquiry before the Commission.

     [Explanation  I-  For the purposes of this section  an inquiry  shall be deemed to have commenced upon the  receipt by the Commission of any complaint, reference or as the case may be, application or upon its own knowledge or information reduced to writing by the Commission.

     Explanation II-For the removal of doubts, it is hereby declared  that  the power of the Commission with respect  to temporary  injunction  includes power to grant  a  temporary injunction without giving notice to the opposite party.]"

     On  a  plain  reading of the provision  the  following requirements  thus emerge:- (a) Temporary injunction can  be granted only during an inquiry.

     (b) There must be proof of certain practices mentioned therein  to have been carried on or are about to be  carried on by the person specified therein.

     (c)  Such practices are likely to affect prejudicially the  public interest and there must be some evidence  either by way of an affidavit or otherwise.

     The  situation thus after the incorporation of the Act of  1984, in the Statute Book emerges that the  Commission’s power  can be invoked under Section 12A within however  such limits  and restrictions as noticed above.  Be it placed  on record, that for an appreciation of the powers under Section 12A  and  to  read  the  same  in  its  proper  perspective, Regulations 76 and 77 (2) of the MRTP Regulations 1991 ought also  to  be  noticed.   Regulations  76  provides  that  an application  for  grant of temporary injunction ought to  be supported  by an affidavit stating therein the circumstances under  which  the  trade  practices can be  ascribed  to  be prejudicial  to  the interest of the public,  consumer  etc. and Regulation 77(2) provides a safeguard to the effect that the Commission before making an order under Section 12A, may direct  the  Director-General  of Investigation to  make  an investigation  and submit a report to the Commission and the Commission, upon consideration thereof, may pass appropriate orders in regard thereto.  Incidentally, be it noted that in the event of a complaint being lodged by a trader in respect

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of  unfair trade practice, it is for the trader to  convince by  way  of ‘evidence-sufficient’ that there is involved  an element  of  public interest in the complaint, in  order  to obtain  an  order of injunction in terms of Section 12A  and the  Commission  in  its turn, has thus to  consider  as  to whether  or not, the public are being deceived or likely  to be  deceived  and  in the event, the Commission comes  to  a finding  that there is likelihood of such a deception,  then and in that event only, the question of grant of an order of injunction  would  arise.  Needless to record here that  the Commission’s  powers  to  grant   temporary  injunctions  is somewhat  akin to that of the Civil Court under Rule 2A to 5 of order XXXIX of the Code of Civil Procedure.  Having dealt with  however,  the  broad legislative  perspective  in  the matter  of  conferment  of  power and authority  on  to  the Commission  in regard to the grant of injunctions and whilst on  the subject let us however discuss the state of the  law in  the  matter  of grant of an order of  injunction  be  it statutory  or  otherwise involving equitable  considerations and  the  same being purely discretionary in  nature  though ordered only on the exigencies of the situation and not as a matter  of course in accordance with the known principles of law.  Generally, however, the interlocutory remedy by way of a  grant  of an order of injunction is intended to  preserve and  maintain in status quo the rights of the parties and to protect  the  plaintiff, being the initiator, of the  action against  incursion  of his rights and for which there is  no appropriate  compensation  being  quantified   in  terms  of damages.   The  basic principle of the grant of an order  of injunction  is to assess the right and need of the plaintiff as  against that of the defendant and it is a duty incumbent on  to  the law courts to determine as to where the  balance lies.   Another redeeming feature in the matter of grant  of interlocutory injunction is that, in the event of a grant of injunction in regard to a party defendant where the latter’s enterprise has commenced and in that event the consideration may  be somewhat different from that where the defendant  is yet  to commence its enterprise.  The decision of this Court in  Wander Ltd.  Vs.Antox India P.Ltd.  (1990 Supplement SCC 727)  lend support to the observations as above.  This Court in paragraph 9 of the Report observed:  "Usually, the prayer for  grant of an interlocutory injunction is at a stage when the  existence of the legal right asserted by the  plaintiff and  its alleged violation are both contested and  uncertain and  remain uncertain till they are established at the trial on evidence.  The court, at this stage, acts on certain well settled  principles  of  administration  of  this  form   of interlocutory   remedy   which  is    both   temporary   and discretionary.   The object of the interlocutory injunction, it is stated

     "..is  to  protect  the plaintiff  against  injury  by violation of his rights for which he could not adequately be compensated  in  damages  recoverable in the action  if  the uncertainty  were resolved in his favour at the trial.   The need  for  such  protection  must  be  weighed  against  the corresponding  need of the defendant to be protected against injury  resulting  from  his   having  been  prevented  from exercising  his  own legal rights for which he could not  be adequately  compensated.   The  Court must  weigh  one  need against   another  and  determine   where  the  ‘balance  of convenience’ lies."

     The  interlocutory  remedy is intended to preserve  in status  quo,  the  rights of parties which may appear  on  a

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prima  facie  case.   The  court   also,  in  restraining  a defendant  from exercising what he considers his legal right but what the plaintiff would like to be prevented, puts into the   scales,  as  a   relevant  consideration  whether  the defendant  has yet to commence his enterprise or whether  he has   already   been  doing  so   in   which   latter   case considerations somewhat different from those that apply to a case  where the defendant is yet to commence his enterprise, are attracted."

     Incidentally, the House of Lords prior to the decision in  American Cyanamid Co.  vs.  Ethican Ltd.  [ 1975 (1) All ER  504] in J.T.  Stratford & Sons Ltd.  Vs.  Lindley  (1965 AC  269) in no uncertain terms laid down that the  plaintiff had  to  show a strong prima facie case that his rights  has been  infringed and thereafter the plaintiff was required to show that the damages would not be an adequate remedy in the event of there being a success of the plaintiff at the trial and  that  the  balance of convenience favoured  the  grant. This  requirement,  however,  in the matter of grant  of  an injunction  so  far  as the English  Courts  are  concerned, stands  slightly  diluted  by  reason  of  the  decision  in American  Cyanamid’s case (supra) which records that in  the event  of  there being a serious issue to decide, the  grant would  be  available to a plaintiff on  however,  compliance with  the  other  fundamentals as noticed below.   A  strong prima facie case, therefore, stands substituted by a serious issue to be decided.

     At  this juncture, however, the decision of the  House of  Lords in American Cyanamid’s case though raised  certain eye-brows  lately,  ought to be considered in slightly  more greater  detail.  Lord Diplock in Cyanamid’s case laid  down the   following   guiding  principles   for  the  grant   of interlocutory  injunction:   (1) "The plaintiff  must  first satisfy  the  Court that there is a serious issue to  decide and  that  if  the defendants were not  restrained  and  the plaintiff  won  the action, damages at common law  would  be inadequate compensation for the plaintiff’s loss.

     (2)  The  Court, once satisfied of these matters  will then  consider  whether the balance of convenience  lies  in favour  of  granting  injunction or not,  that  is,  whether justice would be best served by an order of injunction.

     (3)  The Court does not and cannot judge the merits of the  parties  ‘s respective cases and that any  decision  of justice  will  be taken in a state of uncertainty about  the parties’ rights."

     It would seem to follow therefore, that what should be borne  in mind, in addition to what has been phrased in Lord Diplock’s speech, is that if there is uncertainty, the Court should  be  doubly  reluctant to issue  an  injunction,  the effect  of  which is to settle the parties’ rights once  for all.   On a clear analysis of the speech of Lord Diplock, it appears that if damages, recoverable at common law, would be an adequate remedy and the defendant would be in a financial position to pay the same, no interlocutory injunction should normally  be granted, howsoever strong the plaintiff’s claim appear to be at that stage.  Lord Diplock went on to observe further  that  in the event of there being any doubt, as  to

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the   adequacy  of  the   respective  remedies  and  damages available  to either party or both, then and in that  event, the  question of balance of convenience arises and the  same will  vary  from case to case.  Similar view has  also  been expressed  by  the House of Lords in the case of Dimbleby  & Sons  Ltd Vs.  National Union of journalists (1984 1 ALL  ER 751).  In Power Control Appliances Vs.  Sumeet Machines Ltd. (1994  (2)  SCC 448) this Court did follow the  decision  of this  Court  in  Antox India’s case  (supra)  and  expressly approved  the  main dicta of the House of Lords in  American Cyanamid’s  case.  In Gujarat Bottling Co.  Ltd.  Vs.   Coca Cola Co.  & Ors., (1995 (5) SCC 545:  AIR 1995 SC 2372) this Court  however  sounded  a different note,  though  however, emphasised the discretionary power in the matter of grant of interlocutory  injunction  and  in paragraph 43  this  Court observed:   "43.   The grant of an interlocutory  injunction during  the  pendency  of  legal  proceedings  is  a  matter requiring  the  exercise of discretion of the court.   While exercising  the  discretion the court applies the  following tests  -  (i) whether the plaintiff has a prima facie  case; (ii)  whether the balance of convenience is in favour of the plaintiff;   and (iii) whether the plaintiff would suffer an irreparable   injury  if  his   prayer   for   interlocutory injunction  is  disallowed.  The decision whether or not  to grant  an interlocutory injunction has to be taken at a time when  the  existence  of  the legal right  assailed  by  the plaintiff  and its alleged violation are both contested  and uncertain  and remain uncertain till they are established at the  trial  on  evidence.  Relief by  way  of  interlocutory injunction  is granted to mitigate the risk of injustice  to the  plaintiff  during  the period before  that  uncertainty could   be  resolved.   The   object  of  the  interlocutory injunction  is  to protect the plaintiff against  injury  by violation  of his right for which he could not be adequately compensated  in  damages  recoverable in the action  if  the uncertainty  were resolved in his favour at the trial.   The need  for  such  protection,  has, however,  to  be  weighed against  the  corresponding  need  of the  defendant  to  be protected  against  injury  resulting from his  having  been prevented  from exercising his own legal rights for which he could  not be adequately compensated.  The court must  weigh one need against another and determine where the "balance of convenience" lies.  (see:  Wander Ltd.  Vs.  Antox India (P) Ltd, (1990 (supp) SCC at pp.731-32.) In order to protect the defendant  while granting an interlocutory injunction in his favour  the  court can require the plaintiff to  furnish  an undertaking   so  that  the   defendant  can  be  adequately compensated  if the uncertainty were resolved in his  favour at the trial".

     As  noted above, lately the ‘triable issue concept’ as introduced  by  Lord  Diplock in Cyanamid’s  case  has  been thought  to be much too rigid and wide even conceptually and doubts  are  even  raised as to its  legal  efficacy  having regard  to the facts of adequate compensation theory.  As  a matter  of fact the Courts in England have even gone to  the extent  of  ascribing the judgment to be beneficial for  the richer  sections  of  the  society!    We  however  can  not subscribe to such a view, neither find any justification for such  uncharitable  comments  and it  seems  that  Cynamid’s decision  has been more misunderstood than understood and in this  regard  we  record  our  concurrence  with  the  views expressed by Laddie J.  in Series 5 Software Vs.  Clarke and Others  in 1996 (1) ALL ER 853 wherein the learned Judge has explained  the  judgment of American Cyanamid  with  extreme

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competency  and  in  our  view  also  correctly  Laddie,  J. observed:   "In  many  cases before  American  Cyanamid  the prospect  of success was one of the important factors  taken into  account in assessing the balance of convenience.   The courts would be less willing to subject the plaintiff to the risk  of  irrecoverable  loss which would befall him  if  an interlocutory injunction was refused in those cases where it thought  he  was  likely to win at the trial than  in  those cases  where  it  thought  he   was  likely  to  lose.   The assessment  of  the  prospects of success therefore  was  an important  factor  in  deciding  whether  the  court  should exercise  its discretion to grant interlocutory relief.   It is  this  consideration which American Cyanamid is  said  to have prohibited in all but the most exceptional case.  So it is necessary to consider with some care what was said in the House of Lords on this issue.

     Lord  Diplock said ([1975] 1 ALL ER 504 at 511, [1975] AC 396 at 409):

     ‘..if  the extent of the uncompensatable  disadvantage to  each  party  would  not differ widely,  it  may  not  be improper  to  take into account in tipping the  balance  the relative  strength  of each party’s case as revealed by  the affidavit   evidence   adduced  on   the  hearing   of   the application..   The  court is not justified in embarking  on anything  resembling  a trial of the action  on  conflicting affidavits  in  order  to evaluate the  strength  of  either party’s case.’

     It  appears to me that there is nothing in this  which is  inconsistent with the old practice.  Although couched in terms  ‘it  may  not  be improper’, this means  that  it  is legitimate for the court to look at the relative strength of the  parties’  case  as disclosed by  the  affidavits.   The warning  contained in the second of the quoted sentences  is to avoid courts at the interlocutory stage engaging in mini- trials,  which  is what happened, at least in the  Court  of Appeal,   in   American   Cyanamid  itself.    Interlocutory applications are meant to come on quickly and to be disposed of quickly.

     The supposed problem with American Cyanamid centres on the  following statement by Lord Diplock 9([1975] AC 396  at 409):

     ‘[Asssessing  the  relative strength of  the  parties’ cases],  however,  should be done only where it is  apparent upon the facts disclosed by evidence as to which there is no credible  dispute  that the strength of one party’s case  is disproportionate to that of the other party.’

     If  this means that the court cannot take into account its  view  of the strength of each party’s case if there  is any  dispute on the evidence, as suggested by the use of the words  ‘only’  and  ‘no  credible   dispute’,  then  a   new inflexible  rule has been introduced to replace that applied by  the Court of Appeal.  For example, all a defendant would have  to do is raise a non-demurable dispute as to  relevant facts in his affidavit evidence and then he could invite the court  to  ignore the apparent strength of  the  plaintiff’s case.  This would be inconsistent with the flexible approach suggested in Hubbard v.  Vosper [1972] 1 ALL ER 1023, [1972] 2  QB  84 which was cited with approval earlier in  American Cyanamid  [1975] 1 ALL ER 504 at 510, [1975] AC 396 at  407.

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Furthermore,  it  would be somewhat strange, since  American Cyanamid  directs  courts to assess the adequacy of  damages and  the  balance of convenience, yet these too  are  topics which  will  almost  always  be the  subject  of  unresovled conflicts in the affidavit evidence.

     In  my  view  Lord  Diplock  did  not  intend  by  the last-quoted passage to exclude consideration of the strength of  the cases in most applications for interlocutory relief. It  appears  to me that what is intended is that  the  court should  not  attempt to resolve difficult issues of fact  or law  on an application for interlocutory relief.  If, on the other  hand,  the court is able to come to a view as to  the strength  of  the parties’ cases on the  credible  evidence, then it can do so.  (Emphasis supplied)."

     The  learned Judge, thereafter went on to record  that the House of Lords in American Cyanamid did not suggest that it  was  changing  the  basis upon  which  most  courts  had approached  the  exercise  of discretion in  this  important area.   Thus  on  an analysis of the  decisions  as  noticed above,  there  does  not  seem  to  be  any  difficulty   in appreciating  the  view  as  expressed by  Lord  Diplock  in American  Cynamid.   As  a  matter  of  fact,  Laddie,  J.’s decision  in Series 5 Software case (supra) has been able to resolve  the  issue  without  any departure  from  the  true perspective  of the judgment as noticed above.  We, however, think  it  fit  to  note   herein  below  certain   specific considerations  in  the  matter of  grant  of  interlocutory injunction,  the basic being-non-expression of opinion as to the  merits  of the matter by the Court, since the issue  of grant  of  injunction usually, is at the  earliest  possible stage  so  far  as the time frame is concerned.   The  other considerations  which ought to weigh with the Court  hearing the application or petition for the grant of injunctions are as  below:- (i) Extent of damages being an adequate  remedy; (ii)  Protect the plaintiff’s interest for violation of  his rights  though however having regard to the injury that  may be suffered by the defendants by reason therefor;  (iii) The court  while dealing with the matter ought not to ignore the factum  of strength of one party’s case being stronger  than the  others;  (iv) No fixed rules or notions ought to be had in  the  matter of grant of injunction but on the facts  and circumstances of each case - the relief being kept flexible; (v)  The issue is to be looked from the point of view as  to whether  on  refusal of the injunction the  plaintiff  would suffer  irreparable  loss  and injury keeping  in  view  the strength  of the parties case;  (vi) Balance of  convenience or  inconvenience  ought  to be considered as  an  important requirement  even  if there is a serious question  or  prima facie case in support of the grant;  (vii) Whether the grant or  refusal of injunction will adversly affect the  interest of  general  public  which  can  or  cannot  be  compensated otherwise.

     It  is on this backdrop that exercise of discretion by the Commission shall have to be considered and it is at this juncture  certain further factual details ought to be noted. On  the factual score it appears that the appellant  started its  advertisement campaign for ‘Colgate Dental Cream’ using the  phrase  "Stop bad breath" and "Fight tooth decay"  from 1960.   The  user of the words ‘Suraksha  Chakra’  commenced however  from  the  year 1985.  The records depict  that  in March  1997  the Respondent in Civil Appeal No.2620 of  1998

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being  Hindustan  Lever,  complained   to  the   Advertising Standards  Council  of  India   (ASCI)  against  Appellant’s advertisement  in  respect  of Colgate  Dental  Cream.   The Consumer   Complaints  Council  of   ASCI  scrutinised   the appellant’s  advertisement  in detail and came to a  finding that  the same does not in any way be termed to be unfair or deceptive.  Significantly, however, though there is existing a  provision  for review, the respondent has chosen  not  to proceed  with the matter and allowed the matter to be set at rest.   Subsequently,  however  on 15th October,  1997,  the appellant   herein  filed  a   complaint  before  the   MRTP Commission  being No.UTPE 405 of 1997 against respondent  by reason of the Respondent’s advertisement wherein it has been stated  that  the Respondent’s product "New  Pepsodent"  had 102%  more  germ-  fighting capability as  compared  to  the ‘leading  toothpaste’.   According  to  the  Appellant  this ‘leading   toothpaste’   cannot  but   refer   to   ‘Colgate Toothpaste’  and as such the advertisement is directly aimed at  disparagement  of  appellant’s  product  namely  Colgate Dental Cream and it only thereafter the respondent herein on 22nd  October 1997, filed a complaint before MRTP Commission against  Appellant’s  advertisement in respect  of  ‘Colgate Dental  Cream’  which is ascribed to be purely as a  counter blast.   We  are not however expressing any opinion in  that regard.   Be  that  as  it  may,  records  depict  that  the complaint initiated by the respondent herein contained three specific  grievances  relevant extracts thereof are set  out herein  below:- "For the purpose of promoting the sale,  use and  supply  of its said product, Colgate Dental Cream,  the Respondent   has  been  using   television,  POP  (Point  of Purchase),   hoardings,   radio   and  press   advertisement campaigns,  which  contain  statements which are  false  and misleading.   T.V.   advertisements and storyboards  of  the same  in  Hindi,  along with their English  translation,  is annexed  hereto and marked as Annexure 1 (collectively).   A copy of POP is also enclosed as Annexure 2.

     In  the  said advertisements for promotion of sale  of Colgate  Dental Cream (CDC), the Respondent has inter  alia, made  the following claims, which it is submitted, are  both false and misleading:  a) The Respondent’s CDC toothpaste is claimed to have action of ‘Germ Fighter’, which is projected as a process by which germ activity (which is the root cause of  oral  problems  viz.   tooth decay and  bad  breath)  is controlled.

     b)  The Respondent’s CDC toothpaste is stated to  have the ability to ‘fight tooth decay’.

     c)  The Respondent’s toothpaste is stated to have  the ability to ‘Stop bad breath’.

     The  above  mentioned  claims  are  false  and  highly misleading qua the consumers and trade.

     It   is  submitted  that   the  advertisement  of  the Respondent’s CDC toothpaste purport to set up "germs" as the cause  of both toothdecay and bad breath.  It then  suggests that Colgate Dental Cream has a special "Germ Fighter".  The advertising  then  goes on to suggest that as a  result  the toothpaste  offers  the benefit of Stops Bad Breath,  Fights Toothdecay"  and  provides  a ring or circle  of  safety  or protection.   The  complainant craves leave to refer to  and

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rely  upon  cassettes of all these TV advertisements at  the time of hearing.

     The   Complainant/Informant  believe    the   impugned advertisement  of Colgate Dental Cream has been on air since August  1996 claiming "Germ Fighter" proposition.  Prior  to the  impugned  advertisement no claim of any "Germ  fighter" was made in respect of CDC.  However, for last more than one year the Respondent have introduced new advertising in which this  new claim has been made even though there has been  no change   in  the  ingredients  of  Colgate   Dental   Cream. Storyboards  of the advertising before August’96 are annexed hereto and marked Annexure 3."

     It  therefore, appears that the principal grievance of the  respondent  herein  before the Commission is  that  the claim of the appellant that its toothpaste is ‘germ fighter’ having  the ability to ‘stop bad breath’ and its ability  to ‘fight  tooth decay’ are highly misleading qua the consumers and  the  trade.  The complaint itself further records  that the  advertisement of the appellant purport to suggest  that Colgate   Dental  Cream  has  a  special  germ  fighter  and thereafter   the  complainant  records  as  a  result,   the toothpaste  offers  the benefit of stoppage of ‘bad  breath’ and  ‘tooth  decay’ and thus provides the ring of safety  or protection  and  it  is  on   this  perspective  Mr.   Desai contended that since the principal grievance pertains to the three broad-heads as above and the ring cannot but be termed to  be an incidental issue on which, the order of injunction is wholly unwarranted.  Mr.  Desai, in support of the appeal further  contended  that  the   allegations  of  unfair  and restrictive  trade practices is rather a serious  allegation of  misconduct  as regards the trade and there ought  to  be specific  pleading in the complaint as also in the notice of inquiry  together  with full particulars thereof and in  the absence  of which, question of any credence thereto does not arise,  for less the grant of an order of injunction as  has been  granted by the Commission and impugned in this appeal. In  order  however, to assess the substance of the point  in issue  as raised by Mr.  Desai, a look at Section 36A may be convenient  at  this juncture.  Section 36A defines  "unfair trade practice" as a trade practice which for the purpose of promoting  the  sale,  use  or supply of any  goods  or  for provision  of  any  services, adopts any  unfair  method  or unfair or deceptive practice as mentioned in the Section and thereby  causes loss or injury to the consumer of such goods or   services,  whether  by   eliminating   or   restricting competition  or  otherwise  and  in  this  context  specific reference  may  be  made to specific  sub-Sections  appended thereunder  which  are of some relevance and as  such  noted herein below:- (i) "falsely represents that the goods are of a   particular   standard,    quality,   [quantity]   grade, composition, style or model;

     (ii)  falsely  represents that the services are  of  a particular standard, quality or grade;

     (v)  represents that the seller or the supplier has  a sponsorship  or approval or affiliation which such seller or supplier does not have;

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     (vi)  makes  a  false   or  misleading  representation concerning  the need for, or the usefulness of, any goods or services;

     (vii) gives to the public any warranty or guarantee of the  performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof;

     Provided  that where a defence is raised to the effect that  such  warranty  or guarantee is based on  adequate  or proper  test, the burden of proof of such defence shall  lie on the person raising such defence;

     (viii)  makes to the public a representation in a form that purports to be -

     (i)  a  warranty or guarantee of a product or  of  any goods or services;  or

     (ii)  a  promise  to replace, maintain  or  repair  an article  or  any  part thereof or to repeat  or  continue  a service until it has achieved a specified result,

     if  such purported warranty or guarantee or promise is materially  misleading  or there is no  reasonable  prospect that  such  warranty, guarantee or promise will  be  carried out;

     (ix)  gives false or misleading facts disparaging  the goods, services or trade of another person."

     It is in this context however that the observations of this Court in Lakhanpal’s case (Lakhanpal National Ltd.  Vs. MRTPC  1989 (3) SCC 251) is rather apposite.  This Court  in paragraph  7  of  the report observed:   "7.   However,  the question in controversy has to be answered by construing the relevant  provisions of the Act.  The definition of  "unfair trade  practice"  in  Section  36-A mentioned  above  is  no inclusive  or  flexible,  but specific and  limited  in  its contents.   The object is to bring honesty and truth in  the relationship  between  the  manufacturer and  the  consumer. When  a problem arises as to whether a particular act can be condemned as an unfair trade practice or not, the key to the solution  would  be to examine whether it contains  a  false statement  and is misleading and further what is the  effect of  such  a representation made by the manufacturer  on  the common  man?   Does  it  lead a  reasonable  person  in  the position of a buyer to a wrong conclusion?  The issue cannot be  resolved by merely examining whether the  representation is   correct  or  incorrect  in   the  literal   sense.    A representation  containing a statement apparently correct in the  technical  sense may have the effect of misleading  the buyer  by  using  tricky language.  Similarly  a  statement, which  may be inaccurate in the technical literal sense  can convey  the  truth  and sometimes more  effectively  than  a literally correct statement.  It is, therefore, necessary to examine  whether the representation, complained of, contains the  element of misleading the buyer.  Does a reasonable man

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on  reading  the advertisement form a belief different  from what  the  truth is?  The position will have to viewed  with objectivity,  in  an  impersonal manner.  It  is  stated  in Halsbury’s  Laws  of England (4th edn., paragraphs 1044  and 1045) that a representation will be deemed to be false if it is  false  in substance and in fact;  and the test by  which the  representation  is to be judged is to see  whether  the discrepancy  between the fact as represented and the  actual fact is such as would be considered material by a reasonable representee.   "Another  way of stating the rule is  to  say that  substantial  falsity is, on the one  hand,  necessary, and,    on   the   other,     adequate,   to   establish   a misrepresentation" and "that where the entire representation is  a faithful picture or transcript of the essential facts, no  falsity is established , even though there may have been any   number  of  inaccuracies   in   unimportant   details. Conversely, if the general impression conveyed is false, the most  punctilious  and  scrupulous  accuracy  in  immaterial minutiae  will not render the representation true".  Let  us examine the relevant facts of this case in this background."

     Similar is the finding of this Court that "for holding a  trade practice to be unfair trade practice, therefore, it must be found that it causes loss or injury to the consumer" (emphasis  supplied)  (  H.M.M.   Ltd.   vs.   Monopolies  & Restrictive  Trade Practices Commission):  (1998) 6  Supreme Court  Cases 485 at 490.  In the instant matter there are no allegations  in  the  complaint against the  term  "Suraksha Chakra"  nor even an allegation that the same is  misleading or  an  unfair trade practice.  The notice of  inquiry  also does  not  contain  any reference to  "Suraksha  Chakra"  as unfair  trade practice or there being any involvement or any falsity  or in any way the same tantamounts to a  misleading information  to the people at large.  The allegations in the complaint  filed  by  Hindustan Lever  stand  restricted  or confined  to Colgate’s claim in respect of ‘germ  fighting’, ‘bad  breath’ and ‘toothdecay’.  On the factual analyses  as above,  would we be justified in ascribing the grant of  the order  of  injunction by the Commission that the same is  in accordance  with the known principles of law and the factors which  ought to weigh with the court in the matter of  grant of  injunction  as  indicated above - the  answer  obviously cannot  possibly  be  in the affirmative.   The  rigours  of American  Cynamid and subsequent modulations thereof by  the other  English  decisions  along with  the  observations  of Laddie,  J.   (supra)  do not in any event run  counter  the observations  as above.  The decision of this Court in Antox India  cannot  but  lend concurrence to the  view  expressed above  to  the  effect  that  the  object  of  interlocutory injunction is to protect the plaintiff against the injury by reason  of  violation  of  his right and relief  by  way  of interlocutory  injunction is granted to mitigate the risk of injustice  to  the  plaintiff during the period  before  the uncertainty  could  be  resolved - three  specific  features available  in  the  complaint  have  not  in  any  way  been disturbed  by  reason of lack of evidence but an  incidental issue  wholly  dependent upon those three specific  features has  been  taken  up  for  consideration  and  an  order  of injunction  granted.   This  is where the Commission  is  in error.   The vindication of public right or public injury as contended  by  Mr.  Salve does not, however, make a dent  in the  contextual  facts,  since the case with which  a  party comes  to  court ought to be considered in all fairness,  in

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its  proper  perspective but unfortunately there is a  total lack of the same in the instant matter.

     In  any  event, a distinction shall always have to  be made  and a latitude is allowed in the event of there  being an  advertisement to gain a purchaser or two.  The  latitude spoken   of  ,  however,  cannot   and  does  not  mean  any misrepresentation   but  by  a  description  of  permissible assertion.   In  this context a passage from Anson’s Law  of Contract,  (27th Edn.) may be of some relevance and the same is quoted herein below:-

     "Commendatory  expressions, such as advertisements  to the effect that a certain brand of beer ‘refreshes the parts that  other  beers  cannot reach’, or  that  an  after-shave lotion  is irresistibly attractive to the opposite sex,  are not  dealt  with  as  serious representations  of  fact.   A similar  latitude  is allowed in private contracts to a  man who  wants  to gain a purchaser, though it must be  admitted that  the borderline of permissible assertion is not  always easily  discernible.  At a sale by auction, land was  stated to  be  ‘fertile  and improvable’;  it was  in  fact  partly abandoned  and  useless.   This  was   held  to  be  a  mere flourishing  description  by  an   auctioneer’  [Dimmock  v. Hallett  (1866), LR 2, Ch.  App.  21].  But where in a  sale of  a  hotel  the  property was said to be let  to  ‘a  most desirable  tenant’, whereas his rent could only be  obtained under  pressure  and  was currently much in arrear,  such  a statement  was held to entitle the purchaser to rescind  the contract.   [Smith  v.  Land and House Property  Corporation (1884) 28 Ch.  D.7]

     Further,  assuming  there  was  in  fact  an   express warranty  but  that by itself would not  necessarily  result from  a ‘simple commendation of the quality of goods by  the seller’:   For in this case the rule of civil law,  ‘simplex commendatio  non obligat’ - simple commendation can only  be regarded  as  a  mere  invitation to  customer  without  any obligation  as  regards the quality of goods:  Every  seller will  naturally try and affirm that his wares are  otherwise good to be purchased unless of course the same appears to be on  evidence  that  the commendation was intended  to  be  a warranty.  The popular English saying ‘in a purchase without warranty,  one’s  eyes,  tastes  and   senses  must  be  his protector’  has its definite connotation and its application in  matters of the nature as the present one.  On this score Mr.  Desai contended that when there is an advertisement and the  same  is  said  to have  constituted  an  unfair  trade practice, the Commission has to examine the advertisement as a  whole and assess its impact on the users and viewers.  An advertiser  is  permitted  to  indulge  in  some  amount  of exaggeration  or hyperbole since an advertisement is not  an affidavit and as such question of going into the same to its ‘letter’  does  not arise and it is on this context,  strong reliance  was  placed on the decision of this Court  in  the case of Tata Press v.  M.T.N.L.  [1995 (5) SCC 139] in which this  Court  held  that commercial speech is a part  of  the freedom  of speech and expression of guarantee under Article 19(1)(a)  of the Constitution.  We do not however, think  it fit  to  express  any opinion in regard  thereto  since  the matter  does not warrant such a detailed discussion on  this aspect of the matter at this stage.  The other aspect of the matter  on which strong reliance was placed by Mr.  Desai is the  delay  involved  in the matter.   Admittedly  "Suraksha

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Chakra"   featured   continuously    in   the    appellant’s advertisement  since  the  year 1985 without  any  demur  or protest  from any quarter and not even from the complainant. As noticed above on the factual score that the complaint was filed  as  late  as  on  22.10.1997  immediately  after  the appellant’s  complaint against the advertisement in  respect of  ‘New Pepsodent’ and it is on this score that Mr.   Desai contended  that  the  finding of the Commission  as  regards "Suraksha  Chakra"  or  the  grant of an  interim  order  of injunction in regard thereto does not and cannot arise.  Mr. Desai ascribed this move of the respondent herein as nothing but  a  counter blast and we do find some  justification  in regard  thereto.  The Commission according to Mr.  Desai was in  clear error when it recorded that "Suraksha Chakra"  was assailed  first before the Commission.  Mr.  Desai contended that  "Suraksha  Chakra"  was  not  at  all  an  independent complaint  and at least cannot but be ascribed to be  merely an incidental one by reason of the three specific complaints as  noticed above.  Mr.  Desai contended that the Commission as  a  matter of fact was persuaded to issue  interim  order pertaining  to "Suraksha Chakra" by reason of the factum  of an  order  of  injunction  granted   by  the  Federal  Trade Commission  in  the  United  States  of  America  wherein  a complaint  was made in respect of Colgate Dental Cream  with Gardol  in November 1959 in the United States.  In the  U.S. advertisement  incidentally,  there was an invisible  shield protecting  the tooth.  But in the facts of the matter under consideration, there is no such protection as was offered in the  United  States  but it is the resultant effect  of  the foaming action which stops bad breath and toothdecay and the entire  family  would  be  safe  so  far  as  toothdecay  is concerned.   ‘Suraksha’ has a meaning in common  acceptation and  implies safety and ‘Chakra’ mean a wheel or a disc  and the  words  put  together  as ‘Suraksha  Chakra’  cannot  be equated  or be understood to mean an invisible shield  which would  protect  the  tooth  as was  available  in  the  U.S. advertisement.   In  this context it would be  pertinent  to note  the  observations of the Commission pertaining to  its order of the grant of injunction.  The Commission stated:

     "In  the complaint the respondent’s parent company  in USA was alleged to have made false, misleading and deceptive representations  in advertising CDC with Gardol.  The  print and  television  advertisements gave the impression  to  the prospective  purchasers of CDC with Gardol that persons  who brush  their teeth with that toothpaste would prevent  decay from  getting  to  their teeth as  an  invisible  protective shield  around the teeth is formed by CDC with Gardol.   The TV  advertisement depicted a coconut, tennis ball and lariat being  thrown towards a person but, the coconut, tennis ball and  lariat  bounce off and do not reach the person at  whom they  are  thrown because of an invisible transparent  glass shield  as  also  in  no way  damaged  or  penetrated.   The advertisement  of invisible shield and representation as  to the  degree  or extent of protection was found to be  false, misleading  and deceptive by the FTC and an order was passed directing  the  respondent’s  parent company  to  cease  and desist from representing directly or by implication that CDC with  Gardol  afforded to users complete protection  against tooth  decay or development of cavities in their teeth.   It was  also brought to our notice that although the respondent had voluntarily abandoned the impugned advertisements and TV commercials during the course of hearing before FTC and gave an  undertaking not to display the advertisement, containing the  objectionable claim of invisible protective shield, the

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above  cease  and  desist  order   was  passed  because  the assurance  given by the respondent’s parent company, was not considered  sufficient  for  ruling out  the  likelihood  of resumption  of the impugned advertisements and unfair  trade practice  in some other form.  It was also pointed out  that since  no  appeal  was filed, this order of FTC  had  become final."

     Let  us  now however consider the observations of  the Commission  itself  which runs to this effect:  "falsity  or otherwise of these claims can be established conclusively at the  stage  of  trial when evidence will be adduced  by  the informant/complainant  by examining experts and their  cross examination by the respondent.  Due weight and consideration has   to  be  given  to   the  opinions  of  experts   while appreciating and evaluating evidence in order to arrive at a just  conclusion and this can be done at the final stage  of the  enquiry." In our view the observation or expression  of opinion  as  above, as a matter of fact, runs counter to  an order  of injunction as has been granted by the  Commission. Obviously  the commission was persuaded to pass the order of injunction  pertaining to "Suraksha Chakra" as and by way of an  interlocutory  order  by  reason of the  factum  of  the injunction as granted by the Federal Trade Commission in the United States of America and we have already noticed earlier that  in  the advertisement under controversy  no  invisible shield  to  protect  the  tooth is  available.   It  is  the complainant’s   definite   case   that   the   advertisement pertaining  to  the foaming action, stopping bad breath  and toothdecay  cannot but be said to be a misrepresentation  of facts  and as such ought not to be permitted to be continued with  such an advertisement and it is in this perspective as a matter of fact the complainant records in the complaint:

     "The  Complainant carried out in their Research Centre well  accepted test to study the anti-bacterial efficacy, if any,  of  the CDC.  The Executive Summary of the test  shows that:-

     Contact  Germ Kill test (Ref.  - Spangler S.K.  Jacobs MR, and Applebaum PC, J of Antimicro Chemo Therapy 39 (suppl B) p23, 1997).

     "The  test data shows that Colgate Dental Cream has no significant  impact  on the survival rate of oral  bacterial during  the  contact  of 60 seconds which is more  than  the average  brushing time of consumers.  The same test done for toothpaste  will  standard  anti-bacterial   agent  shows  a significant  drop  in  the survival rate of  these  bacteria under  similar conditions".  The Complainant craves leave to refer  to  and  rely upon the detailed report,  enclosed  as Annexure 6.

     The analytical report clearly establishes that Colgate Dental  Cream  has no proven anti-bacterial  ingredient  nor dies  it  have any significant anti- bacterial  activity  or effect.   The  claim made in the advertising are not  proved and/or substantiated scientifically/technically and are thus false and misleading.

     In  India  the  ability  of a  toothpaste  to  protect against  harmful  oral germs is a very  compelling  consumer benefit.   A  national  survey  of  consumers  done  by  the complainant/informant  in  1994  showed   that  55%  of  all consumers see ‘ability to fight germs’ as the most important

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attribute  of  a toothpaste.  In fact, germ protection is  a strong  source  of competitive advantage in the market.   As such,  any  claim  in this area, must be  backed  by  proven efficacy of the product to combat the threat of harmful oral bacteria.

     The  Respondent  is thus making advertising claims  on Colgate  Dental  Cream for promoting sale of Colgate  Dental Cream  that  are  misleading  and   false,  to  gain  unfair advantage  in the market place to the extent of monopolising the  toothpaste market, beyond the intrinsic quality of  the product.   The Respondent has also been making the claim  of ‘fights  toothdecay’  for promoting sale of  Colgate  Dental Cream.  This claim again is false and absolutely misleading. It  is a scientifically established fact that the well known agent  that  can fight "toothdecay" is Fluoride.  More  than 100  long  term clinicals have been carried out to  show  in unequivocal  terms  that  fluoride is  capable  of  reducing toothdecay.  The complainant enclose a summary of literature on  toothdecay and the role of fluoride in reducing the same in  support of the fact that presence of ‘fluoride’ can help in reducing tooth decay.  (Annexure 8 (Colly).

     The  Complainant/informant submits that Colgate Dental Cream does not have soluble fluoride.  The fact that Colgate Dental  Cream  does  not  have   soluble  fluoride  can   be ascertained  from the pack of Colgate Dental Cream (copy CDC pack photocopy is enclosed as Annexure 9).

     The Complainant further submits that even the claim of "Stops Bad Breath" is false and misleading, as bad breath is the  result of action of oral bacteria that act on  proteins present  in saliva or food particles giving Volatile Sulphur Compounds  (VSC) like hydrogen sulphide and Indoles.   These compounds  are volatile and are currently considered as root cause  of bad breath.  Process of generation of VSCs is well reported  (Steenberghe  van D and Rosenberg M (ed.),  Lueven University Press 1995).

     The  Respondent  has  also published a  report  (Niles H.P.,   J   dent.    Res.73    sp.issue,   Abst.    No.1579) demonstrating  that  reduction  in VSCc can be  achieved  by using  triclosan  in  the toothpaste.   A  placebo  (without triclosan)  showed  no  effect over and above  the  negative control.  Demonstration of reduction in VSC is pre-requisite for  making  claims on bad breath.  It is, therefore,  clear that  Colgate Dental Cream which does not contain triclosan, can  not  supress  the bad breath leave alone  "stops"  it." (Emphasis supplied)

     The  averments as above unmistakably therefore, depict that  it  is  on  the basis of  laboratory  tests  that  the complainant has found that representation is not correct and it  is  on this perspective that Mr.  Desai  also  contended that  the  entire  grievance of the complainant  has  to  be decided  on  the  basis of the evidence at the time  of  the trial  but  not at any stage prior thereto.  As a matter  of fact  the  Commission itself, as noted above,  has  recorded such  a finding, but after recording the same, came to  find about  ‘Suraksha  Chakra’ and we find some justification  in Mr.   Desai’s  criticism as regards the non  application  of mind  in the matter of passing of an order of injunction  as impugned  in  this  appeal.  On a perusal of  the  complaint ‘Suraksha  Chakra’ cannot be said to be within ambit of  the foaming  action  and  has  been  referred  therein  only  to

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complete  the  advertisement portion as an incidental  issue and  obviously  the  Commission was persuaded  more  by  the U.S.Trade  Commission’s Report rather than consideration  of the allegations in the complaint itself.

     Mr.   Salve  appearing for the  Respondent/Complainant strongly  contended  that by using ‘Suraksha Chakra’ in  the commercial  advertisement specially in Hindi, the  appellant has,  in fact, targeted the ordinary common man in the Hindi belt  so  as  to give an expression that the  toothpaste  as matter  of fact provides a durable and permanent  protection with  respect  to  germs, toothdecay and bad breath  to  the entire  family and "Suraksha Chakra" depicts the same.   Mr. Salve  contended that at this stage, question of there being any  definite  finding on any of the issues would not  arise since  only  an arguable case is required to be made out  at this  juncture.   Probably an arguable case leading  to  the establishment  of the prima facie case is required - we have dealt with this issue in the early part of this judgment and as  such we need not detain ourselves on this score but  the fact  remains that question of the balance of convenience of the  parties  have not been dealt with or discussed  in  the order  of the Commission.  Mr.  Salve in continuation of his submission  contended that there is, in fact, a cross appeal by  the  Complainant  by  reason  of  the  failure  of   the commission  to pass orders as regards the three limbs of the advertisement  namely ‘germ fighting’, ‘toothdecay’ and ‘bad breath’ and the fact however remains that the Commission was otherwise  satisfied that this cannot but be termed to be  a case  similar  in nature as was heard by the  Federal  Trade Commission  wherein the invisible shield was taken  recourse to  by  the appellants.  Mr.  Salve contended that at  least there  would  be an arguable case by reason of the order  of FTC  and as such question of interference in Appeal by  this Court  in  terms of provisions of Section 55 does not  arise more  so  by reason of the fact that the Commission has  not returned  any finding as regards the three principal  issues but  passed  an  order  of injunction only  as  regards  the ‘Suraksha Chakra’ by reason of the specific order of the FTC as noticed above.

     The  submission  of Mr.  Salve at the first  blush  is rather  attractive  that  at this stage we  are  not  really concerned  with the factum of establishment of any truth  or falsity  but  merely a prima facie case or an arguable  case resulting in establishment of a prima facie case and in that perspective the issue therefore emerges as to whether such a prima  facie case has been made out or not - we are  however afraid  that  the  answer cannot but be the  negative.   The Federal  Trade  Commission was confronted with an  invisible shield which was protecting the tooth from a coconut, tennis ball  and  a  piece  of  stone and it  is  on  this  factual back-drop that FTC came to a conclusion that withstanding of the  pressure  of the coconut or resistance by an  invisible shield  by  reason of the user of the toothpaste  would  not arise.   The  situation  in the present context  is  however totally  dis- similar.  No material object is bouncing  back after  hitting  the  tooth by reason of  "Suraksha  Chakra". "Suraksha  Chakra"  comes  up  by reason of  the  factum  of fighting  of germs, tooth decay and bad breath - it has  not been  proved  or  even enquired as to  whether  the  Colgate Dental Cream can avoid decay or germs or whether it does ort does  not  stop bad breath - It is only against these  three items  that  there  is ‘Suraksha’ by means  of  a  ‘Chakra’. There  is no claim that the toothpaste would act as a shield

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against  any hard substance which may or may not  tantamount to  misleading  the common unwary purchaser in the  clampham omnibus:   This "Suraksha Chakra" refers two basic elements, namely  ‘toothdecay’  and  ‘germ   fighting’  coupled   with stopping  of  bad breath.  It does not as a matter  of  fact require any special knowledge to appreciate or understand as to  the  effect of the "Suraksha Chakra".  No  evidence  has been  led  as  to  whether   there  would  be  avoidance  of ‘toothdecay’ or ‘germ fighting’ by reason of the user of the toothpaste and without rendering evidence on these two basic elements  in our view, question of there being a prima facie case  for  establishment  for  the  grant  of  interlocutory injunction  does  not and cannot arise.  The Commission,  as appears,  was  totally  obsessed with the FTC’s  finding  in regard  to the invisible shield without however any  factual support  in the matter under consideration.  The  Commission it seems in fact, misapplied and misread the observations of Federal   Trade  Commission  since   there  is  no   factual similarity  between  the two.  Prima facie case or at  least arguable  case does not and cannot possibly suggest an order of  injunction without any factual support.  There ought  to be  some such support on facts without which there would not be  any  justification for grant of an interim  order.   Mr. Salve   next  contended  that   the  complaint  pertains  to vindication  of a public right and since the public interest is involved, question of any delay for moving the Commission does  not arise and more so, it is a remedy to public  wrong and not being a personal relief.  We are, however, unable to record  our concurrence at this juncture.  Public wrong,  if any, needs to be assessed and proved, without which question of  having an order of injunction would not arise.  While it is  true  that the relief prayed for is statutory in  nature but  that  does not clothe the Commission to pass orders  de hors  the basic principles of law.  In fine, the  submission of  Mr.  Desai as regards the bona fides of the  application under  Section  12A cannot also be brushed aside and in  our view  non  consideration  thereof  by  the  Commission   has resulted  in  a clear error on the part of  the  Commission. The  fact that within a period of 10 days of the application by   the  appellant  herein   before  the  Commission,   the Respondent  files the instant complaint with an  application for  an  interim  prayer - though, however,  this  "Suraksha Chakra"   admittedly   is  available   in   the   commercial advertisement  since 1985 and in the visual advertisement in Hindi  at  least  since 1987- there was no lodgment  of  any protest or complaint in public interest but it only filed as a  back  lash on the appellant’s complaint as noticed  above and the motive therein in our view cannot also be ruled out. The  appeal  preferred  by the complainant  as  against  the failure  of the Commission to pass orders on the other three elements  of  the  advertisement in our view at  this  stage cannot be entertained and we record our concurrence with the finding  of  the Commission that without going  through  the evidence,  it is neither feasible not proper in any event to pass  any orders thereon at this juncture.  We are  dismayed however  by the fact that after recording a finding on  that score  as  noticed above, the Commission passed an order  of injunction  in  regard  to  an  issue  without  however  any material  on  record.   As  a matter of  fact  there  is  no evidence of a single consumer being misled and not a whisper as to what constitute an unfair trade practice pertaining to "Suraksha  Chakra".  The Commission also thought it fit  not to  record  any reason or justification for the grant of  an interim order of injunction in spite of finding as above and before  the matter is investigated and complaint is  finally

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heard.   This  apart, the factum of non-availability of  any explanation  of  more than 13 years delay has also not  been delved  into by the Commission at all.  In that view of  the matter  question  of there being any order of injunction  at this  stage of the proceeding on the face of the finding  as passed  by the Commission itself does not and cannot  arise. The  Appeal No.2620 of 1998 (Colgate Palmolive (India)  Ltd. vs.   Hindustan Lever Ltd.) therefore succeeds:  The  Appeal as filed by the complainant being No.3288 of 1998 (Hindustan Lever  Ltd.   vs.   Colgate Palmolive (India)  Ltd.)  stands dismissed.  Each party to bear its own cost.  Be it recorded that any observation made in this order shall not in any way effect  the hearing of the matter before the Commission  and the  Commission would be at liberty to deal with the  matter in  accordance  with the law and without being inhibited  by any observations made in this order.