* Author
[2024] 5 S.C.R. 143 : 2024 INSC 328
Yash Raj Films Private Limited
v.
Afreen Fatima Zaidi & Anr.
(Civil Appeal No. 4422 of 2024)
22 April 2024
[Pamidighantam Sri Narasimha* and Aravind Kumar, JJ.]
Issue for Consideration
Respondent no.1-complainant decided to go to watch a movie on
the silver screen with her family. However, she found that the movie
did not contain the song, which was widely circulated for promoting
and publicising the movie. Whether there is any ‘deficiency’ in
the provision of the entertainment service that the consumer has
availed by paying the consideration through the purchase of a
ticket. The complainant alleges that there is ‘deficiency’ in the
service because what was shown in the film was not as per what
was promised. Whether it is an ‘unfair trade practice’ giving rise
to a cause of action.
Headnotes
Consumer Protection Act, 1986 – Legal implications of a
promotional trailer – Contractual relationship – Unfair trade
practice – Complainant did not find a song in a movie, which
was widely circulated for promoting and publicising movie –
Consumer complaint filed – The District forum dismissed the
complaint – The State Commission held that the appellant
has engaged in an unfair trade practice as the song in the
promotional trailer was widely circulated but not shown in
the film – The NCDRC held that the exclusion of the song
from the movie will also constitute a deficiency, as defined
in s.2(1)(g) of the C.P. Act, if the song is impliedly promised,
but is later omitted while exhibiting the movie – Correctness:
Held: A promotional trailer is unilateral – It is only meant to
encourage a viewer to purchase the ticket to the movie, which
is an independent transaction and contract from the promotional
trailer – A promotional trailer by itself is not an offer and neither
intends to nor can create a contractual relationship – Since the
promotional trailer is not an offer, there is no possibility of it
144 [2024] 5 S.C.R.
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becoming a promise – Therefore, there is no offer, much less a
contract, between the appellant and the complainant to the effect
that the song contained in the trailer would be played in the
movie and if not played, it will amount to deficiency in the service
– The transaction of service is only to enable the complainant to
watch the movie upon the payment of consideration in the form
of purchase of the movie ticket – This transaction is unconnected
to the promotional trailer, which by itself does not create any kind
of right of claim with respect to the content of the movie – The
promotional trailer does not fall under any of the instances of “unfair
method or unfair and deceptive practice” contained in clause (1)
of s.2(1)(r) that pertains to unfair trade practice in the promotion
of goods and services – Nor does it make any false statement or
intend to mislead the viewers – Furthermore, the burden is on the
complainant to produce cogent evidence that proves unfair trade
practice but nothing has been brought on record in the present case
to show the same – Therefore, no case for unfair trade practice
is made out in the present case. [Paras 14, 18]
Case Law Cited
Tata Press Ltd v. Mahanagar Telephone Nigam Limited
[1995] Supp. 2 SCR 467 : (1995) 5 SCC 139; Arulmighu
Dhandayudhapaniswamy Thirukoil, Palani, Tamil Nadu
v. Deptt. of Post Offices [2011] 10 SCR 43 : (2011) 13
SCC 220; Lakhanpal National Ltd v. MRTP Commission
[1989] 2 SCR 979 : (1989) 3 SCC 251; KLM Royal
Dutch Airlines v. Director General of Investigation
and Registration [2008] 14 SCR 245 : (2009) 1 SCC
230; Ludhiana Improvement Trust, Ludhiana. v. Shakti
Cooperative House Building Society Ltd [2009] 6 SCR
12 : (2009) 12 SCC 369 – referred to.
Books and Periodicals Cited
Halsbury’s Laws of England, Vol. 22 (5th edn, LexisNexis
2012), Para 240; Pollock and Mulla, The Indian Contract
and Specific Relief Acts, Vol. I (14th edn, LexisNexis
2013), p. 42 – referred to.
List of Acts
Consumer Protection Act, 1986.
[2024] 5 S.C.R. 145
Yash Raj Films Private Limited v. Afreen Fatima Zaidi & Anr.
List of Keywords
Consumer Protection; Promotional trailer; Contractual relationship;
Unfair trade practice; Deficiency of service; Independent transaction;
Offer; Promise; Right of claim; False statement; Misleading of
viewers; clause (1) of section 2(1)(r) of Consumer Protection Act,
1986.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4422 of 2024
From the Judgment and Order dated 18.02.2020 of the National
Consumers Disputes Redressal Commission, New Delhi in RP No.
156 of 2018
Appearances for Parties
Deepak Biswas, Abhishek Malhotra, Ms. Subhalaxmi Sen, Raghav
Shukla, Ms. Sonali Jain, Advs. for the Appellant.
Ms. Aishwarya Bhati, A.S.G., Mohd. Zahid Hussain, Ms. Mumtaz
Javed Shaikh, Zeeshan Zaidi, Ms. Ruchi Kohli, Vatsal Joshi, Ms. Ruchi
Gour Narula, Ishaan Sharma, Vedansh Anand, Navanjay Mahapatra,
Shashwat Parihar, Amrish Kumar, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Pamidighantam Sri Narasimha, J.
1. What are the legal implications of a promotional trailer, popularly
known as a ‘promo’, or a teaser that is circulated before the release
of a movie? Does it create any contractual relationship or obligations
akin to it? Is it an unfair trade practice if the contents of the promotional
trailer are not shown in the movie? These questions have arisen
in the context of a consumer dispute wherein the consumer courts
have allowed the complaint alleging deficiency of service based on
a ‘contractual obligation’ and ‘unfair trade practice’. For the reasons
to follow, we have held that promotional trailers are unilateral and
do not qualify as offers eliciting acceptance, and as such they do
not transform into promises, much less agreements enforceable by
law. We have also held that the facts do not indicate adoption of
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an unfair trade practice under the Consumer Protection Act, 1986.
Before we delve into the analysis to draw our conclusions, the short
facts necessary for the case are as follows.
2. The appellant is a known film producer. It produced a film called
‘Fan’ in the year 2016. Before the release of the film, the appellant
circulated a promotional trailer, both on television and online, which
contained a song in the form of a video.
2.1 The respondent no. 1 (‘complainant’), a teacher in a school
in Aurangabad, states that having watched the promotional
trailer of the film, she decided to go to watch the movie on
the silver screen with her family. However, she found that the
movie did not contain the song, even though the song was
widely circulated for promoting and publicising the movie.
She filed a consumer complaint before the District Consumer
Redressal Forum wherein she has stated that she decided to
watch the movie after watching the song in the promotional
trailer, with the expectation of watching the song in the theatre.
However, to her disappointment, she found that the song was
not played in the movie. She alleges that due to this, she felt
cheated and deceived by the appellants and has undergone
mental agony. In view of the above, she claimed Rs. 60,550
as damages.
3. In a short order dated 29.04.2016, the District Consumer Redressal
Forum dismissed the complaint on the ground that there is no
relationship of consumer and service provider.
3.1 Against the above order, the complainant filed an appeal before
the State Commission, which was allowed by order dated
22.09.2017. The State Commission held that entertainment
services are covered under the definition of ‘service’ and the
appellant is a service provider. Apart from holding that there
is deficiency in service, the State Commission held that the
appellant has engaged in an unfair trade practice as the song
in the promotional trailer was widely circulated but not shown
in the film. Under these circumstances, the State Commission
awarded Rs. 10,000 as compensation for mental harassment
and Rs. 5,000 as cost to the complainant.
[2024] 5 S.C.R. 147
Yash Raj Films Private Limited v. Afreen Fatima Zaidi & Anr.
3.2 The appellant carried the matter to the National Consumer
Disputes Redressal Commission1
. By the order impugned,2
the
NCDRC held that a consumer would feel deceived if a song
that is shown in the promotional trailer is not played in the film,
thereby amounting to an unfair trade practice. Further, there is
deficiency of service as playing the song in the trailer leads to
an implied promise that it will be played in the film. In its own
words, the NCDRC held as follows:
“7. When the producer of a movie shows the promos of
the said movie on TV Channels, etc. and such promos
include a song, any person watching the promo would
be justified in believing that the movie would contain the
song shown in the said promos, unless the promo itself
contains a disclaimer that the song will not be a part of the
movie. If a person likes the song shown in the promo and
based upon such liking decides to visit a cinema hall for
watching the said movie for a consideration, he is bound
to feel deceived, disappointed and dejected if the song
shown in the promo is not found in the film. The practice of
including a song in the promo of a film shown widely on TV
Channels but excluding the said song while exhibiting the
movie, in my opinion, constitutes an unfair trade practice.
The obvious purpose behind such an unfair trade practice
is to draw the potential viewers to the cinema hall by luring
them with the song which forms part of the promo and
thereby making gain at the cost of the viewer if the song
does not form part of the movie for which consideration
is paid by the viewer. The exclusion of the song from the
movie will also constitute a deficiency, as defined in Section
2(1)(g) of the C.P. Act, if the song is impliedly promised,
but is later omitted while exhibiting the movie.”
4. Before we proceed to delineating and applying the test for ‘deficiency
of service’ and ‘unfair trade practice’ under the Consumer Protection
Act, 19863
, it is necessary to set out the context in which a promotional
1 Hereinafter ‘NCDRC’.
2 In Revision Petition No. 156 of 2018, order dated 18.02.2020.
3 Hereinafter ‘the Act’.
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trailer would or would not create a contractual relationship or any
other right or liability between the producer and the consumer.
5. A promotional trailer is an advertisement for a film. It is a settled position
of law that commercial speech, which includes advertisements, is
protected through freedom of speech under Article 19(1)(a) of the
Constitution, subject to the reasonable restrictions in Article 19(2).4
It is also a settled position that commercial speech that is deceptive,
unfair, misleading, and untruthful is excluded from such constitutional
protection and can be regulated and prohibited by the State.5
Subject
to these restrictions, the producer/ advertiser has the freedom to
creatively and artistically promote his goods and services.
6. Information dissemination is one of the primary purposes of advertising:
an advertisement informs existing and potential consumers about the
presence and availability of certain goods and services in the market,
their features and qualities, and their uniqueness and comparability
with market competitors and substitutes. However, that is not the
only purpose of an advertisement. An advertisement is not only
informational but also a means of creative and artistic expression.
It can allure, entice, capture the attention, and pique the interest of
consumers through features that may not directly relate to information
about the product or service. Advertisements build brand loyalty
and reputation, and promote an image and ethos of not only the
product being advertised but also the manufacturer/ service provider.
Advertisements contain unique taglines, jingles, visuals, etc. that are
intended to grab the attention of the viewer and become associated
and synonymous with the product or service itself.
7. A song, dialogue, or a short visual in a promotional trailer may be
seen in the context of the multifarious uses of advertisements. These
could be used to popularise or to create a buzz about the release
of the film, rather than to purely represent information about the
contents of the film. Viewers could associate these with the film and
may be interested or encouraged to watch the film. However, the
kind of right or liability a promotional trailer creates would entirely
4 Tata Press Ltd v. Mahanagar Telephone Nigam Limited [1995] Supp. 2 SCR 467 : (1995) 5 SCC 139,
paras 17-18 and 25.
5 ibid, para 17.
[2024] 5 S.C.R. 149
Yash Raj Films Private Limited v. Afreen Fatima Zaidi & Anr.
depend on the civil and statutory legal regime. The complainant
has invoked the jurisdiction of the consumer court and therefore, it
is necessary to analyse the issues in view of the provisions of the
Consumer Protection Act, 1986.
8. The Consumer Protection Act has been enacted to protect the
interests of consumers and for that purpose, to establish authorities
for the settlement of consumer disputes. A ‘consumer’ has been
defined in Section 2(1)(d) as a consumer of goods or services. A
consumer of goods is one who buys any goods, and a consumer of a
service is one who hires or avails of any service, for a consideration,
except when such goods or services are for a commercial purpose.6
A consumer can file a ‘complaint’, which is defined in Section 2(1)
(c) of the Act,7
alleging inter alia ‘deficiency in service’ and ‘unfair
trade practice’.
9. Deficiency of Service: In this context, the definition of ‘deficiency’
and ‘service’ are important. The term ‘service has been defined in
Section 2(1)(o) of the Act as follows:
“2. Definitions.—(1) In this Act, unless the context
otherwise requires,—
6 Section 2(1)(d) of the Act defines ‘consumer’ as follows’:
“2. Definitions.—(1) In this Act, unless the context otherwise requires,—
(d) “consumer” means any person who,—
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly
promised, or under any system of deferred payment and includes any user of such goods other than
the person who buys such goods for consideration paid or promised or partly paid or partly promised, or
under any system of deferred payment, when such use is made with the approval of such person, but
does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and
partly promised, or under any system of deferred payment and includes any beneficiary of such services
other than the person who hires or avails of the services for consideration paid or promised, or partly
paid and partly promised, or under any system of deferred payment, when such services are availed of
with the approval of the first mentioned person but does not include a person who avails of such services
for any commercial purpose”
7 The relevant portion of Section 2(1)(c) of the Act defining ‘complaint’ is as follows’:
“(c) “complaint” means any allegation in writing made by a complainant that—
(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service
provider;
***
(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in
any respect;
***
with a view to obtaining any relief provided by or under this Act;”
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(o) “service” means service of any description which is
made available to potential users and includes, but not
limited to, the provision of facilities in connection with
banking, financing insurance, transport, processing,
supply of electrical or other energy, board or lodging or
both, housing construction, entertainment, amusement
or the purveying of news or other information, but does
not include the rendering of any service free of charge or
under a contract of personal service;”
There is no doubt about the fact that any person watching a movie
after remitting the necessary consideration becomes a consumer of
service. The service in this case is that of entertainment.
10. The question for our consideration is whether there is any ‘deficiency’
in the provision of the entertainment service that the consumer
has availed by paying the consideration through the purchase of
a ticket. The complainant alleges that there is ‘deficiency’ in the
service because what was shown in the film was not as per what
was promised. Now, the definition of ‘deficiency’ becomes relevant
and it is defined in Section 2(1)(g) of the Act as follows:
“2. Definitions.—(1) In this Act, unless the context
otherwise requires,—
(g) “deficiency” means any fault, imperfection, shortcoming
or inadequacy in the quality, nature and manner of
performance which is required to be maintained by or
under any law for the time being in force or has been
undertaken to be performed by a person in pursuance of
a contract or otherwise in relation to any service;”
11. As per the definition, there is deficiency when there is a fault,
imperfection, shortcoming or inadequacy in the quality, nature, and
manner of performance that is required to be maintained either in
terms of a law or in terms of a contract.
8
To appreciate the allegation of
deficiency, it is necessary to refer to certain portions of the complaint:
“3. The Complainant states that, her children are big fans
of Shahrukh Khan and after watching the promos of the
8 Arulmighu Dhandayudhapaniswamy Thirukoil, Palani, Tamil Nadu v. Deptt. of Post Offices [2011] 10
SCR 43 : (2011) 13 SCC 220, para 18.
[2024] 5 S.C.R. 151
Yash Raj Films Private Limited v. Afreen Fatima Zaidi & Anr.
song ‘Jabra Fan’ they decided to go to the movie ‘Fan’
to watch the song ‘Jabra Fan’ on silver screen. She had
given 2 option (1) Jungle Book and the second one was
‘Fan’ to both the children namely Nabeel and Flora. Out
of two option they preferred the later one because of song
‘Jabra Fan’ to enjoy on celluloid.
4. The Complainant states that, she accordingly convinced
her mother-in-law, father-in-law, sister and brother-in-law
for the movie by saying that, the film is looking great
and the song ‘Jabra Fan’ which is now become jingle,
is also there for the entertainment which will feel great
on the silver screen. She bought 7 Tickets of first day
first show on 15.04.2016, show time 6.10 p.m. Friday of
PVR Cinema of the row G-4 to G-10 of Rs. 150/- each
which cost her Rs. 1050/. The copy of all the Tickets are
dated 15.04.2016 are annexed herewith and marked as
Annexure ‘A’.
***
7. The Complainant states that, as the song was not
shown in the entire movies the family members and
in started teasing her that, why she planned for such
a movie which is not having a single song and a song
‘Jabra Fan’ which become anthem is shown in promos
of the film. She has gone through mental agony because
of Respondents act.”
It is evident from the above that the deficiency alleged in the complaint
arises out of the complainant’s own expectation that the song would
be a part of the movie. It is assumed that there is deficiency of
service as the movie did not contain the song.
12. The fallacy in this argument is in assuming that a promotional trailer
is an offer or a promise. It is under this misplaced assumption that
the complainant has assumed that the subsequent formation of a
contract to watch the movie is not in compliance with the promise
allegedly made through the promotional trailer. We will explain this
in terms of the law of contracts.
13. The essential element of an ‘offer’ or ‘proposal’ for the formation
of a contract has not been satisfied in the present case. A person
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makes an offer or ‘proposal’ when he signifies his willingness to do
something with a view to obtain the assent of another person.9
When
the other person signifies his assent, the proposal gets accepted
and becomes a ‘promise’.10 A proposal is therefore a prerequisite to
a ‘promise’ and a ‘contract’.11
14. A promotional trailer is unilateral. It is only meant to encourage a
viewer to purchase the ticket to the movie, which is an independent
transaction and contract from the promotional trailer. A promotional
trailer by itself is not an offer and neither intends to nor can create a
contractual relationship.12 Since the promotional trailer is not an offer,
there is no possibility of it becoming a promise. Therefore, there is no
offer, much less a contract, between the appellant and the complainant
to the effect that the song contained in the trailer would be played
in the movie and if not played, it will amount to deficiency in the
service. The transaction of service is only to enable the complainant
to watch the movie upon the payment of consideration in the form
of purchase of the movie ticket. This transaction is unconnected to
the promotional trailer, which by itself does not create any kind of
right of claim with respect to the content of the movie.
15. Unfair Trade Practice: While we have held that no contract is formed
on the basis of the promotional trailer and as such, there is no
deficiency of service, there is a further question for our consideration,
i.e., whether it is an ‘unfair trade practice’ giving rise to a cause of
action. If it is found to be an unfair trade practice, the Act provides
for compensation and other remedies.
9 Section 2(a) of the Indian Contract Act, 1872 defines ‘proposal’ as follows:
“2. Interpretation-clause.—In this Act the following words and expressions are used in the following
senses, unless a contrary intention appears from the context:—
(a) When one person signifies to another his willingness to do or to abstain from doing anything, with
a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal;”
10 Section 2(b) of the Indian Contract Act, 1872 defines ‘promise’ as follows:
“(b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to
be accepted. A proposal, when accepted, becomes a promise;”
11 Section 2(h) of the Indian Contract Act, 1872 defines ‘contract as follows:
“(h) An agreement enforceable by law is a contract;”
‘Agreement’ has been defined in Section 2(e) as follows:
“(e) Every promise and every set of promises, forming the consideration for each other, is an agreement;”
12 It is well-established in contractual jurisprudence that an advertisement generally does not constitute an
offer and is merely an ‘invitation to offer’ or ‘invitation to treat’. See Halsbury’s Laws of England, vol 22
(5th edn, LexisNexis 2012), para 240; Pollock and Mulla, The Indian Contract and Specific Relief Acts,
vol I (14th edn, LexisNexis 2013), p. 42.
[2024] 5 S.C.R. 153
Yash Raj Films Private Limited v. Afreen Fatima Zaidi & Anr.
16. The term ‘unfair trade practice’ is defined in Section 2(1)(r) of the
Act and the relevant portions are as follows:
“2. Definitions.—(1) In this Act, unless the context otherwise
requires,—
(r) “unfair trade practice” means a trade practice which, for the
purpose of promoting the sale, use or supply of any goods
or for the provision of any service, adopts any unfair method
or unfair or deceptive practice including any of the following
practices, namely:—
(1) the practice of making any statement, whether orally or in
writing or by visible representation which,—
***
(ii) falsely represents that the services are of a particular
standard, quality or grade;
***
(iv) represents that the goods or services have sponsorship,
approval, performance, characteristics, accessories, uses or
benefits which such goods or services do not have;”
17. In various decisions,13 this Court has held that a false statement that
misleads the buyer is essential for an ‘unfair trade practice’.14 A false
representation is one that is false in substance and in fact, and the
test by which the representation must be judged is to see whether
the discrepancy between the represented fact and the actual fact
would be considered material by a reasonable person.15 Further,
“statements of the nature which are wilfully made knowingly false,
or made recklessly without honest belief in its truth, and made with
the purpose to mislead or deceive will definitely constitute a false or
misleading representation. In addition, a failure to disclose a material
fact when a duty to disclose that fact has arisen will also constitute
13 Lakhanpal National Ltd v. MRTP Commission [1989] 2 SCR 979 : (1989) 3 SCC 251, para 7; KLM Royal
Dutch Airlines v. Director General of Investigation and Registration [2008] 14 SCR 245 : (2009) 1 SCC
230, paras 16-20; Ludhiana Improvement Trust, Ludhiana. v. Shakti Cooperative House Building Society
Ltd [2009] 6 SCR 12 : (2009) 12 SCC 369, paras 18-23.
14 ibid.
15 Lakhanpal National Ltd (supra), para 7.
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a false or misleading representation.”16 Therefore, only substantive
and material discrepancies are covered under ‘unfair trade practice’.
18. The ingredients of ‘unfair trade practice’ under Section 2(1)(r)(1)
are not made out in this case. The promotional trailer does not fall
under any of the instances of “unfair method or unfair and deceptive
practice” contained in clause (1) of Section 2(1)(r) that pertains to
unfair trade practice in the promotion of goods and services. Nor
does it make any false statement or intend to mislead the viewers.
Furthermore, the burden is on the complainant to produce cogent
evidence that proves unfair trade practice17 but nothing has been
brought on record in the present case to show the same. Therefore,
no case for unfair trade practice is made out in the present case.
19. There is another important distinction that we must bear in mind, i.e.,
the judicial precedents on this point do not relate to transactions of
service relating to art. Services involving art necessarily involve the
freedom and discretion of the service provider in their presentation.
This is necessary and compelling by the very nature of such services.
The variations are substantial, and rightly so. Therefore, the standard
by which a court of law judges the representation, followed by the
service, must be different and must account for the creative element
involved in such transactions.
20. In view of the above reasons and conclusions, we set aside the
findings of the impugned order that there is deficiency of service
and unfair trade practice, and allow the present appeal.
21. Pending applications, if any, stand disposed of.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeal allowed.
16 KLM Royal Dutch Airlines (supra), para 20.
17 Ludhiana Improvement Trust (supra), para 23.
