{"id":211167,"date":"2002-08-14T00:00:00","date_gmt":"2002-08-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/media-transasia-india-ltd-and-vs-indian-airlines-ltd-and-ors-on-14-august-2002"},"modified":"2018-07-23T16:02:25","modified_gmt":"2018-07-23T10:32:25","slug":"media-transasia-india-ltd-and-vs-indian-airlines-ltd-and-ors-on-14-august-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/media-transasia-india-ltd-and-vs-indian-airlines-ltd-and-ors-on-14-august-2002","title":{"rendered":"Media Transasia India Ltd. And … vs Indian Airlines Ltd. And Ors. on 14 August, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
Media Transasia India Ltd. And … vs Indian Airlines Ltd. And Ors. on 14 August, 2002<\/div>\n
Equivalent citations: AIR 2003 Delhi 27, 100 (2002) DLT 236<\/div>\n
Author: R Chopra<\/div>\n
Bench: R Chopra<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  R.C. Chopra, J.  <\/p>\n
1. This application under Order 39 Rules 1 & 2 read
\nwith Section 151 of the Code of Civil Procedure is for
\ngrant of ad interim injunction in favor of the
\nplaintiffs to restrain the defendants from placing on
\nboard of Indian Airlines and Alliance Air Flights, their
\noffices and in lounges at various Airports in the
\ncountry, any other in-flight magazine except the
\nplaintiffs magazine named “SWAGAT”. In the course of
\nthe arguments, however, Shri Gopal Subramanium, Sr.
\nAdvocate for the plaintiffs has limited his prayer to
\ninterim injunction for restraining the defendant No. 1
\nfrom putting on the flights of Indian Air Lines only the
\nproposed Magazine “DARPAN’ which is being printed by
\ndefendant No. 3 for defendant No. 2, Alliance Air.\n<\/p>\n
2. The facts relevant for the disposal of this
\napplication, briefly stated, are that the plaintiffs
\nhave filed a suit for declaration and permanent
\ninjunction against the defendants alleging that the
\nplaintiffs had entered into an Agreement dated 14.5.1998
\nwith defendant No. 1 in regard to the publication of an
\nin-flight Magazine titled “SWAGAT”. According to the
\nplaintiffs all over world an in-flight Magazine is
\nexclusive in character and is identified as the brand
\nambassador of the concerned Airlines and as such has
\nexclusivity. According to the plaintiffs their
\nagreement of 1998 subsists up to 2004, in terms of which
\nthe plaintiffs are printing and supplying 60,000\/-
\ncopies of the magazine “SWAGAT” to defendant No. 1 every
\nmonth for placing the same on board the flights of
\nIndian Airlines defendant No. 1 and the Alliance
\nAir-defendant No. 2. The plaintiffs are not only
\nsupplying 60,000 copies every month free of cost but in
\naddition are paying a royalty also of Rs. 8,75,000\/- per
\nmonth to defendant No. 1 for the privilege of exclusive
\ncirculation rights. They are also providing free
\nadvertising space worth of Rs. 5,20,000\/- to defendant
\nNo. 1 by giving it two full page advertisements. Under
\nthe Agreement the ratio of the editorials and
\nadvertising space is fixed and the only benefit that the
\nplaintiffs derive out of the Agreement is by way of the
\nadvertisements which they receive for the magazine.\n<\/p>\n
3. The plaintiffs allege that in or about October,
\n2001 they were shocked to see an advertisement in “Times
\nof India” by which the defendant No. 2, Alliance Air, had
\nissued a tender seeking bids for appointing an agency to
\nundertake designing and printing of its in-flight
\nmonthly magazine. The plaintiffs made efforts to obtain
\ndetails about this advertisement and sought
\nclarification from defendant No. 1 also but there was no
\nresponse. In the month of May 2002 the plaintiffs
\ndiscovered that defendant No. 3 was openly interviewing
\npeople in the travel and hospitality industry in
\nconnection with its in-flight Magazine to be printed
\nfor defendant No. 2 Alliance Air. It was being
\nrepresented that the said in-flight Magazine was meant
\nfor distribution in Indian Airlines as well as Alliance
\nAir Flights. According to the plaintiffs the impugned
\naction on the part of the defendants was in violation of
\nthe plaintiffs rights and privileges in regard to the
\nexclusivity of printing and circulating “SWAGAT” on
\nIndian Airlines flights and was in violation of the
\nagreement dated 14.2.1998. On 3.6.2002 the defendant
\nNo. 3 announced the launch of its new in-flight magazine
\nfor Alliance Air and Indian Airlines and the letters
\nissued by defendant No. 3 invited proposals for
\nadvertising space in its proposed magazine. On
\n10.6.2002 the plaintiffs wrote a letter to the
\nChairman-cum-Managing Director of defendant No. 1 seeking
\nclarifications on the matter but there was no response.
\nOn 13.6.2002 and 14.6.2002 the plaintiffs wrote two more
\nletters to defendant No. 1. Only on 26.6.2002, a letter
\nwas received from defendant No. 1 in which a stand was
\ntaken that the contract between the plaintiffs and
\ndefendant No. 1 in no way gave exclusivity of circulation
\nto plaintiffs magazine “SWAGAT”. The plaintiffs alleged
\nthat the Agreement between defendants No. 2 and 3, in
\nregard to the printing and publication of another
\nin-flight magazine was in violation of the Agreement
\nbetween the plaintiffs and defendant No. 1 as defendants
\nhad no right to put any other in-flight magazine on
\nIndian Airlines Flight and was aimed at causing huge
\nfinancial loss to the plaintiffs. The application under
\nOrder 39 Rule 1 and 2 of the CPC for ad interim
\ninjunction was also based on the aforesaid pleadings.\n<\/p>\n
4. The defendants filed their written statements and
\nreplies controverting the plea of the plaintiffs that
\nthey had any right of exclusivity in regard to the
\nprinting and circulation of an in-flight Magazine on
\nBoard Indian Airlines flights. It was further pleaded
\nthat the plaintiffs had no privity of contract with
\ndefendant No. 2 and as such the defendant No. 2 was free
\nto enter into an agreement with defendant No. 3 in the
\nmatter of printing and publishing its own in-flight
\nmagazine. It was pointed out that defendants No. 2 and 3
\nhad already entered into an Agreement for printing an
\nin-flight magazine for defendant No. 2 under the name of
\n“DARPAN”. It was pleaded that the in-flight magazine of
\nplaintiffs “SWAGAT” was being placed on the flights of
\nAlliance Air, defendant No. 2, without there being any
\ncontract between the plaintiffs and defendant No. 1 in
\nthis regard and similarly the defendant No. 2 was also
\nfree to place on the flights of defendant No. 1, Indian
\nAirlines, its in-flight magazine “DARPAN”. It was
\nclarified that neither the number of the copies received
\nfrom the plaintiffs was being reduced nor any other
\naction was being contemplated which could be stated to
\nbe in violation of the Agreement between the plaintiffs
\nand defendant No. 1. The defendant No. 2 and 4 pleaded
\nthat they had no privity of contract with the plaintiffs
\nand as such they could not be injuncted from having a
\nseparate in-flight magazine. It was also pleaded that
\nthere was nothing in the agreement between the
\nplaintiffs and defendant No. 1 to give exclusivity to the
\nmagazine of the plaintiffs or to curtail the rights of
\ndefendant No. 1 or defendant No. 2 to have any other
\nmagazine. It was stated that suit against defendant
\nNo. 2 to 4 was not even maintainable as there was no
\nprivity of contract between them.\n<\/p>\n
5. I have heard Sh. Gopal Subramanium, Sr.
\nAdvocate for the plaintiffs, Sh. Harish N. Salve, Sr.
\nAdvocate for defendant No. 1, Sh. Mukul Rohtagi, Sr.
\nAdvocate for defendants No. 2 & 4 and Sh. Arun Jaitley,
\nand Sh. Rajiv Nayyar, Sr. Advocates for defendant
\nNo. 3.\n<\/p>\n
6. Shri Gopal Subramanium, Sr. Advocate, appearing on
\nbehalf of the plaintiffs has vehemently argued that the
\nexclusivity in favor of the plaintiffs in the matter of
\nthe circulation of its magazine “SWAGAT” on board Indian
\nAirlines flights may not be explicit in the agreement
\ndated 14.5.1998 but it is implicit in as much as the
\nconcept of an in-flight magazine on the flights of
\nairlines all over the world is based on the exclusivity
\nof such magazines and they are identified as brand
\nambassadors of their respective Airlines. It is
\nsubmitted that the agreement between the parties and the
\nfacts and circumstances placed on record prima facie
\nestablish that the exclusivity was implicit in the
\nagreement and as such, the defendant No. 1 has no right
\nto permit any other in-flight magazine on board its
\nflights. It is submitted that the plaintiffs are not
\nonly supplying 60,000 magazines free of cost to
\ndefendant No. 1 every month but are paying it a huge
\nroyalty also besides providing free advertisement space
\nin its magazine worth Rs. 5,20,000\/-. It is argued that
\nall these payments and facilities being provided by the
\nplaintiffs to defendant No. 1 at their cost are in
\nconsideration of plaintiffs right to attract
\nadvertisements in their magazine “SWAGAT” and in case
\nanother in-flight magazine is put on board of Indian
\nAirlines flights it would make serious inroads into the
\nrevenue of the plaintiffs and jeopardies the economic
\nviability of their agreement with defendant No. 1. It is
\nsubmitted that under the circumstances, the plaintiffs
\nhave a prima facie case for an interim relief during the
\npendency of the suit by way of restraining the defendant
\nNo. 1 from permitting the defendants No. 2 & 3 to place
\ntheir proposed magazine “DARPAN” on the flights of
\ndefendant No. 1 Indian Airlines.\n<\/p>\n
7. Shri Harish N. Salve, Sr. Advocate for defendant
\nNo. 1 has strongly repudiated the claim of the plaintiffs
\nin regard to any exclusivity of rights in the matter of
\nthe printing and circulation of an in-flight magazine on
\nboard of Indian Airlines flights. According to him, the
\nagreement dated 14.5.1998 did not contain any negative
\nstipulation curtailing the right of defendant No. 1 to
\nhave another in-flight magazine on board its flights.
\nHe submits that the defendant No. 1 has already issued
\ninstructions to defendants No. 2 to 4 not to publicise or
\nproject that the magazine “DARPAN” being printed by them
\nis an in-flight magazine of defendant No. 1. He points
\nout that the defendant No. 1, without there being any
\ncontract even was placing the magazine of the plaintiffs
\non the flights of defendant No. 2 and as such, has a
\nright as well as justification to permit the defendant
\nNo. 2 also to put its proposed magazine “DARPAN” on the
\nflights of defendant No. 1. It is argued that the
\ndefendant No. 1 is abiding by all the terms and
\nconditions of its agreement dated 14.5.1998 with the
\nplaintiffs and has neither reduced the number of its
\ncopies nor the share of editorials and advertisements
\nand as such, the plaintiffs cannot make any grievance in
\nregard to the contravention of the terms of their
\nagreement with defendant No. 1. It is submitted that
\nboth, defendants No. 1 and 2, are free to have inflight
\nmagazines of their choice for placing on board in their
\nflights and as such, the plaintiffs have no prima facie
\ncase to show that they are entitled to ad-interim
\ninjunction as prayed. Referring to para 10 of the
\nplaint, learned counsel for defendant No. 1 points out
\nthat the plaintiffs have come to this Court raising
\nabsolutely false and frivolous grounds and as such, they
\nare not entitled to an ad-interim injunction as prayed.\n<\/p>\n
8. Shri Mukul Rohtagi, Sr. Advocate, appearing for
\ndefendants No. 2 and 4 supports the submissions made by
\nlearned Counsel for defendant No. 1 and submits that the
\nplaintiffs have no right to seek any relief against
\ndefendants No. 2 and 4 for the reason that there is no
\nprivity of contract between the plaintiffs and
\ndefendants No. 2 and 4. It is submitted that defendant
\nNo. 2 is a separate entity and was not a party to the
\nagreement dated 14.5.1998 between the plaintiffs and
\ndefendants No. 1. He has drawn the attention of the
\nCourt to the fact that the plaintiffs had come to know
\nabout the decision of defendant No. 2 about the printing
\nand circulation of its in flight magazine in October,
\n2001 but still the plaintiffs kept on waiting and
\nwatching and came to the Court in July, 2002 only when
\nthe contract between the defendants No. 2 & 3 had matured
\nand the new magazine was ready for circulation. It is
\nalso submitted that the new in-flight magazine of
\ndefendant No. 2 has already been printed and its first
\nissue is already out.\n<\/p>\n
9. Shri Arun Jaitley, Sr. Advocate, appearing for
\ndefendant No. 3, the printer and publisher of the new in-flight
\nmagazine of defendant No. 2 submits that
\npetitioners have no prima facie case in their favor.
\nIt is submitted that the new inflight magazine of
\ndefendant No. 2 will be promoting a healthy competition
\nbetween the plaintiffs and defendant No. 3 and as such,
\nthe plaintiffs should not feel shy of competing with
\ndefendant No. 3. It is pointed out that the plaintiffs
\nhave been getting the contract in their favor without
\nany tenders and in violation of the guidelines
\napplicable to public sector undertakings. Not only
\nthat, the plaintiffs have been enjoying undue benefit
\nalso by way of circulation of its inflight magazine on
\nthe flights of defendant No.2 inspite of the fact that
\nunder the agreement dated 14.5.1998, the defendant No.1
\nwas under no obligation to place the magazine of
\nplaintiffs on the flights of defendant No.2. It is
\nsubmitted its rights in the matter of having as many
\nmagazines as it wanted for placing on board its flights
\nand as such, the plaintiffs have no prima facie case in
\ntheir favor. It is argued that the plaintiffs have no
\ncause of action against defendants No.2, 3 and 4 and as
\nsuch, no orders can be passed injuncting these
\ndefendants. He further contends that in the plaint
\nitself, the plaintiffs have reserved their right to
\nclaim damages and as such, it is a fit case in which the
\nplaintiffs should be left to pursue their remedy by way
\nof claiming damages only, if made out, in accordance
\nwith law.\n<\/p>\n
10. After considering the submissions made by learned
\ncounsel for the parties, this Court is of the considered
\nview that the plaintiffs have not been able to establish
\na prima facie case in regard to the exclusivity of their
\nright for the circulation of their magazine “SWAGAT” on
\nboard Indian Airlines flights. Clause 3 of the
\nagreement dated 14.5.1998 relates only to the content of
\nthe magazine and speaks  of the exclusive nature of the
\nArticles to be printed therein so as to maintain an
\nexclusivity of the magazine but it does not suggest even
\nthat the plaintiffs have any exclusive right to
\ncirculate their magazine on board Indian Airlines
\nflights. Neither Clause (3) of the agreement speaks of
\nexclusivity in favor of the plaintiffs nor there is any
\nother negative covenant in the agreement forbidding the
\ndefendant No.1 from having any other in-flight magazine
\non its flights. The contention of learned counsel for
\nthe plaintiffs that all over world, such magazines are
\nexclusive and are treated as the brand ambassadors of
\ntheir respective Airlines cannot be accepted in the face
\nof written agreement dated 14.5.1998 in which
\nexclusivity clause is conspicuously missing. This Court
\ndoes not agree with the submission that exclusivity
\nclause is implicit in the agreement. It appears that
\nafter entering into the agreement dated 14.5.1998, which
\nhad no exclusivity clause and enjoying the benefit of
\nhaving their magazine on the flights of defendant No.2
\nalso, inspite of absence of any right in respect
\nthereof, the plaintiffs are now attempting to expand
\ntheir rights further without any lawful claim or justification.\n<\/p>\n
11. It is also to be noticed that the defendant No.2
\nis an altogether separate entity with whom the
\nplaintiffs have no privity of contract. The defendant
\nNo.2 has full liberty to have its own in-flight
\nmagazine. In view of the fact that it has no privity of
\ncontract with the plaintiffs in the matter of any
\nin-flight magazine the plaintiffs have no prima facie
\ncase in their favor to claim any restraint order
\nagainst defendant No.2 in the matter of printing and
\ncirculation of its own in-flight magazine.\n<\/p>\n
12. Learned counsel for defendant No.1 has
\ncategorically stated that defendant No.1 is neither
\nviolating nor intends to violate any term of its
\nagreement with the plaintiffs and it has also already
\nissued directions to defendants No.2, 3 & 4 to refrain
\nfrom representing or projecting to the public as well as
\ntourism and hospitality industry that their in-flight
\nmagazine is an in-flight magazine of defendant No.1. It
\nis pointed out that the defendant No.1 is continuing to
\nreceive 60,000 copies per month from the plaintiffs and
\nwould continue to place them on its flights and shall
\nabide by the terms and conditions of agreement to ensure
\nthat the contract between the plaintiffs and defendant
\nNo.1 is abided by in its letter and spirit. The
\nplaintiffs’ apprehension that the magazine of defendants
\nNo.2 & 3 would eat into their advertisements and thereby
\ncause loss of revenue to them say have some truth but so
\nlong the defendant No.1 is acting within the terms of
\nits agreement with the plaintiffs this apprehension of
\nthe plaintiffs cannot be made a ground for depriving
\ndefendant No.1 of its right to have on its board the
\nmagazine of defendant No.2. The plaintiffs must get
\nprepared and geared up for a healthy competition with
\ndefendant No.3 and improve the quality and content of
\ntheir magazine so as to attract more advertisements for
\ntheir magazine “SWAGAT”.\n<\/p>\n
13. Under the circumstances, this Court is of the
\nconsidered view that the plaintiffs have not succeeded
\nin establishing even prima facie that they have any
\nright to injunct the defendants in the matter of
\nprinting or circulation of the new in-flight magazine of
\ndefendant No.2. They have also failed to establish
\nprima facie that they have any right of exclusivity in
\nregard to the circulation of their in-flight magazine
\n“SWAGAT” on the flights of defendant No.1.\n<\/p>\n
14. Not only that the plaintiffs have no prima facie
\ncase in their favor, it is also shown on record that
\nthe balance of convenience is more in favor of
\ndefendants. The defendant No.1 is acting in accordance
\nwith the terms and conditions of its agreement with the
\nplaintiffs and defendants No.2 to 4, who have no privity
\nof contract with the plaintiffs, are exercising their
\nown right to go for a separate in-flight magazine for
\ndefendant No.2 under the name of “DARPAN”. In case an
\nad interim injunction as prayed is granted, the
\ndefendants No.2 to 4, who are already at a very advanced
\nstage of the printing and circulating of their magazine,
\nwould suffer extreme inconvenience and financial loss.
\nAs such, the balance of convenience is not at all in
\nfavor of the plaintiffs.\n<\/p>\n
15. In the plaint itself, the plaintiffs have
\nreserved their right to sue the defendants for damages.
\nIt clearly conveys that damages would be an alternative
\nremedy for the plaintiffs. This Court is of the
\nconsidered view that the under the facts and circumstances
\nof the case, compensation in terms of money would be an
\nequally efficavious remedy for the plaintiffs.
\nTherefore, the plaintiffs cannot be held entitled to the
\ngrant of an ad interim injunction as prayed.\n<\/p>\n
16. Before concluding, this Court may further add
\nthat the plaintiffs are liable to be denied the relief
\nof ad interim injunction on the ground of latches and
\ndelay also in as much as it is shown that in the month
\nof October, 2001 itself, they had come to know that
\ndefendant No.2 was contemplating to have its separate
\nin-flight magazine. When the plaintiffs came across an
\nadvertisement in the ‘Times of India’ regarding tenders
\nfor an in-flight magazine of defendant No.2 they ought
\nto have come to the Court immediately and should not
\nhave slept over the matter for months together during
\nwhich period the defendants No.2 to 4 made substantial
\nprogress in the matter of the printing and circulation
\nof new magazine “DARPAN”. In the course of the
\narguments, learned counsel for defendants No.2 to 4
\nplaced before the Court the first issue of “DARPAN”
\nwhich has already been printed and is ready for
\ncirculation. Therefore, on the ground of delay and
\nlatches also, the plaintiffs have rendered themselves
\ndisentitled to the discretionary relief of ad-interim
\ninjunction as prayed.\n<\/p>\n
17. In view of the foregoing reasons, this Court is
\nof the considered view that plaintiffs have failed to
\nmake out a case for grant of ad-interim injunction.
\nApplication under Order 39 Rule 1 and 2 CPC filed by the
\nplaintiffs, therefore, stands dismissed.\n<\/p>\n
18. Nothing stated herein shall be taken as an
\nexpression of opinion on the merits of the suit pending
\nbefore this Court as the observations made herein are on
\nprima facie basis only.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Media Transasia India Ltd. And … vs Indian Airlines Ltd. And Ors. on 14 August, 2002 Equivalent citations: AIR 2003 Delhi 27, 100 (2002) DLT 236 Author: R Chopra Bench: R Chopra JUDGMENT R.C. Chopra, J. 1. This application under Order 39 Rules 1 & 2 read with Section 151 of the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-211167","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nMedia Transasia India Ltd. And ... vs Indian Airlines Ltd. 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