The main legal point established in the judgment is that advertising material must not constitute false, misleading, unfair, or deceptive statements, and the threshold for proving defamation is high.

JUDGMENT :

S. Muralidhar, J.

This appeal is directed against an order dated 15th March, 2019 passed by the learned Single Judge in IA No.10934/2018 in CS(OS) No. 403/2018 restraining the Appellant/Defendant from "televising or publishing any commercials or any other advertising or promotional material in the print or electronic form which would result in disparagement or denigration of the Plaintiff's product/brand TATA salt including the impugned three television commercials or any modified forms thereof, the viral video, the pamphlet and the flyer as also the marketing booklet or any modified forms thereof."

2. The learned Single Judge however clarified that the Appellant "is entitled to promote its own product- Puro Healthy Salt as a salt which is natural and healthy."

TCL's case

3. The aforementioned suit was filed by the Respondent/Plaintiff Tata Chemicals Limited (TCL) against the present Appellant alleging that the Appellant had in the impugned "advertising material" made "false, baseless and reckless statements" against the Respondent/Plaintiff's product: "TATA Salt". The "impugned material" referred to in the plaint comprises:

(a) Three television commercials (TVCs) featuring the well-known actor Mr. Anil Kapoor

(b) Modified TVCs which allegedly continued the false propaganda

(c) Interview of the promoter of the Appellant Mr. Ruchir Modi published in the Economic Times (ET) dated 14th March, 2018

(d) A flyer/pamphlet containing allegedly objectionable content

(e) A video alleged to have been published and circulated by the Appellant on WhatsApp.

4. Tcl averred in the plaint that since 1983 it has been manufacturing TATA salt and enjoys a 24% to 25% market share in edible iodised salt. It further claimed that it was one of the two Indian companies to manufacture iodised white salt through vacuum evaporation and that it was safe for human consumption. It claimed that TATA Salt was fully compliant with the norms under the Food Safety and Standards Act, 2006 (FSS Act) and the regulations there under. It admitted to using an anti-caking agent being E-536 permissible under the FSS Act as well as one iodised agent i.e. Potassium iodate.

5. The Appellant manufactures "Puro Healthy Salt". TCL alleged that the above aforementioned 'impugned material' of the Appellant constituted its 'campaign' that was intended to send a message that TATA Salt was harmful to health and not fit for human consumption. TCL characterised the said impugned material as "disparaging, malicious and false". Referring to the gesture of the wave of hand by Mr. Anil Kapoor in the three TVCs, TCL alleged that this were "meant to cast aspersions on the Plaintiff's brand TATA." It was alleged that the advertisement was not merely puffery but was "false and slanderous."

6. Tcl averred in the plaint that it addressed a complaint to the Advertising Standards Council of India ("ASCI") in relation to the first of the three TVCs released. ASCI assured TCL by an e-mail dated 13th December, 2017 that it was looking into the matter. During the pendency of that complaint the second and third TVC and the modified TVCs came to be telecast. By two separate e-mails dated 9th January, 2018 TCL made further complaints to ASCI against the Appellant.

7. Tcl claimed that by e-mails dated 15th February, 2018 and 11th March, 2018 ASCI held in favour of TCL, substantially upholding its contentions. After the first e-mail an undertaking of the Appellant was recorded by the ASCI that it would modify its advertisements. It is further claimed that the Foods Safety Standards Authority of India ("FSSAI") had also complained against the impugned material to ASCI.

8. The Appellant did not comply with the recommendations of ASCI but challenged it by filing Suit No.1167/2018 in the Bombay High Court primarily on the ground that it was not a member of the ASCI and therefore not bound by its recommendations.

9. The plaint also adverted to the fact that the Indian Salt Manufacturers Association ("ISMA") filed