The principle of forum non-convenience can be applied when a court has jurisdiction but the interest of justice and equity requires the plaintiff to approach a court where parties are already litigating.

SANJIV KHANNA, J:

1. Glaxo Smithkline Consumer Health Care Limited is the sole plaintiff in CS(OS) No. 2577/2008 and plaintiffs No. 2 in CS(OS) No. 2646/2008. Horlicks Limited, United Kingdom, is plaintiff No. 1 in CS(OS) No. 2646/2008. Both suits have filed against M/s Heinz India (P) Limited alleging disparaging advertisements by the defendant, manufacturers of drink/milk mix Complan. The plaintiff(s) are manufacturing the drink/milk mix under the mark Horlicks. CS(OS) No. 2577/2008 deals with print advertisements and CS(OS) No. 2646/2008 deals with moving/video advertisements.

2. The defendant had entered appearance on 12th December, 2008 when CS (OS) No. 2577/2008 was listed for the first time and were on caveat in CS(OS) No. 2646/2008. The defendant has also filed reply along with documents to I.A. No. 15237/2008 in CS(OS) No. 2577/2008.

3. Jurisdiction of this Court to entertain the present suits as a part of cause of action arises in Delhi, is not disputed. The defendant, however, submits that this Court should not entertain the present suits on the principle of forum non-convenience and the parties have been extensively heard on the said aspect and on the aspect of grant of ad interim injunction. Suit Before the Calcutta High Court

4. The plaintiff(s) in August, 2004 had filed a civil suit in Calcutta High Court for injunction etc. against the defendant alleging disparaging advertisement depicting two cups including one cup with the alphabet H. The Complan cup was shown as growing in height in comparison to the cup with the alphabet H. Injunction order was passed against the defendant with the direction to show the advertisement without showing the cup marked with the alphabet H. The defendant introduced another advertisement replacing the alphabet on the second cup with the letter X. Contempt proceedings were initiated against the defendant but the matter is now pending in appeal. Proceedings before the Madras High Court

5. The second litigation was filed by the plaintiff(s) herein in Madras High Court against an advertisement with one cup with the drink complain growing taller and two other cups remaining stagnant. The Madras High Court allowed the defendant to use a comparative cup (but without any letter) along with a Complan cup provided colour of the liquid in the two cups was the same. The defendant was restrained from using the words largest selling brand in the bottom frame. Food or nutritional value of the defendants product complain also came up for consideration and after observing that parties were yet to go for trial, it was observed:-suffice it is point out that the contention of complan that it has more percentage of Milk Protein, prima facie appears to be correct. In such circumstances, there is no reason to conclude that the statement made by complain that it has more Protein and vital nutrients is false and misleading

6. With reference to advertisements of the plaintiff(s) it was observed that the plaintiffs horlicks itself is carrying on Comparative Advertisement. When that being so, it would be unfair to injunct or restrain the Defendant from carrying on Comparative Advertisement. Third suit before the Bombay High court

7. The third suit was filed by the defendant against the plaintiff(s) in the Bombay High Court is in respect of a moving advertisement. Copy of the said advertisement, which is about 30 seconds long, along with the visuals and audio lines has been filed by the defendant herein. In the said advertisement, the two products Complan and Horlicks are visible in baskets held by two mothers along with their sons. The maximum retail price of the two products is stated. It is highlighted that the product of the plaintiff(s) is lower in price. It is the allegation of the defendant in the suit filed before Bombay High Court that the moving advertisement makes disparaging remarks against the defendant product Complan with regard to nutrients and health value in comparison to the plainti