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1999 DIGILAW 365 (BOM)

ARTE INDIANA v. P. MITTULAUL LALAH

1999-06-14

S.H.KAPADIA, V.K.SABHARWAL

body1999
JUDGMENT Y.K. Sabharwal, C.J. - Admit Counsel for respondent No.1 waives service. In this appeal, learned Counsel for the appellant gives up respondent No.2 and states that in fact, the suit itself will be withdrawn against respondent No.2 and his client would take such appropriate separate proceedings against the said respondent as may be permissible in law. Considering the nature of the controversy, learned Counsel for the parties have made their submissions and submit that the appeal be finally disposed of at this stage itself. 2. The suit, out of which this appeal has arisen, was filled by the appellants complaining of violation of copyright under Copyright Act, 1957, as also infringement of trade mark and passing off. The appellant has its office at Mumbai and it carries on business within the jurisdiction of this Court. Respondent is carrying on business at Chennai. It is not in dispute that in regard to violation of copyright which the appellant/plaintiff has alleged in the plaint, this Court has the jurisdiction in view of the provisions of Section 62(2) of the Copyright Act which, unlike other enactments, gives right to a plaintiff to institute the suit within the local limits of whose jurisdiction, at the time of the institution of the suit, the plaintiff carries on business or personally works for gain. 3. In view of claims in the pliant about the infringement of trade mark and passing off, the appellant filed an application under Clause 14 of the Letters Patent seeking leave of the Court to combine the cause of action relating to copyright and the cause of action relating to infringement and passing off. The leave has been declined by learned Single judge. In terms of the impugned order, learned Single Judge has held that no part of the cause of action has arisen within the territorial jurisdiction of this Court. The Learned Single Judge has opined that Clause 14 provides that leave can be granted by this Court for joinder of causes of action provided one of such causes of action has arisen within the jurisdiction of this Court. Clause 14 reads as under: "14. The Learned Single Judge has opined that Clause 14 provides that leave can be granted by this Court for joinder of causes of action provided one of such causes of action has arisen within the jurisdiction of this Court. Clause 14 reads as under: "14. And we do further ordain that where plaintiff has several causes of action against a defendant, such causes of action not being for land or other immovable property, and the said High Court shall have original jurisdiction in respect of one of such causes of action, it shall be lawful for the said High Court to call on the defendant to show cause why the several causes of action should not be joined together in one suit, and to make such order for trial of the same as to the said High Court shall seem fit." A bare reading of the aforesaid clause shows that the accrual of the cause of action within the territorial jurisdiction of this Court is not contemplated to permit joinder of causes of action. Clause 14 only contemplate that this Court shall have original jurisdiction in respect of one of such causes of action to permit two separate causes of action being combined together in one suit. The learned Single Judge has, however, come to the conclusion that if right to sue has been conferred by an act of Parliament and it is because of conferring of such right that a suit can be maintained, then it cannot be said that the right to sue is pursuant to Ordinary Original Jurisdiction of this Court as conferred by the Letters Patent. It has been also observed that the express "Original jurisdiction" has been used to distinguish it from the extra-ordinary jurisdiction conferred by Clause 13 of the Letters Patent. The aforesaid are the brief facts under which the present appeal has been preferred by the appellant. We may now notice some judgments relevant for decision of the point in issue. A Division Bench of this Court in Tukojirao Holkar v. Sowkabai (AIR 1929 Bom. 100.), while considering Clauses 12 and 14 of the Letters Patent and the provision or Order 2, Rules 3 and 4 Civil Procedure Code, has held that what is relevant is that one cause of action is within the jurisdiction of the Court. A Division Bench of this Court in Tukojirao Holkar v. Sowkabai (AIR 1929 Bom. 100.), while considering Clauses 12 and 14 of the Letters Patent and the provision or Order 2, Rules 3 and 4 Civil Procedure Code, has held that what is relevant is that one cause of action is within the jurisdiction of the Court. In the present case, cause of action in relation to infringement of copyright is admitted by within the jurisdiction of this Court. 4. In Burroughs Welcome (India) Ltd. v. G. K. Sharma & King Scientific Research Centre (1989 I.P.L.R. 60.), it has been held that as Bombay High Court has jurisdiction to entertain the suit in respect of cause of action relating to infringement of copyright, cause of action in respect of infringement of trade mark and passing off should be permitted to be joined in the suit and under these circumstances, leave under Clause 14 of the Letters Patent was granted. 5. In Gold Seal Engineering Products Pvt. Ltd. and others v. Hindustan Manufacturers and others (2A. An Unreported Judgment dated. 10-6-1994), while reversing the decision of a Single judge of this Court and proceeding on the assumption that this Court has no jurisdiction to entertain the suit in respect of infringement of trade mark and passing off, the Division Bench held that once it is found that the plaintiffs are entitled to maintain the suit in this Court in respect of grievance of breach of copyright, there was no reason to refuse the leave so as to drive the parties to file litigation in several Courts. It was held that it is necessary to grant leave with a view to avoid multiplicity of litigation. The Bench noticed that it is desirable that a practical view is taken and parties are not driven from Court to Court on technicalities. It was held that Clause 14 of the Letters Patent was enacted to sub-serve the purpose of avoidance of multiplicity of proceedings and the trial Court was entirely in error in refusing to grant leave on assumption that the conduct of the appellant was not bona fide. The leave was accordingly granted. 6. In our view, when Clause 14 does not require that one of the cause of action should have risen within the jurisdiction of this Court. It would not be permissible to read such a requirement in that clause. The leave was accordingly granted. 6. In our view, when Clause 14 does not require that one of the cause of action should have risen within the jurisdiction of this Court. It would not be permissible to read such a requirement in that clause. In this regard, reference may be made to the decision of the Supreme Court in State of Kerala v. Mathai Verghese and others ( AIR 1987 SC 33 .). The Apex court was considering the interpretation placed on Section 489-A of the Indian Penal Code by the High Court. The High Court had interpreted the words "any currency note" in the said section as "Indian currency note". While reversing the decision of the High Court the Supreme Court held that when the Legislature dose not speak of currency notes of India, the Court interpreting the relevant provision of law cannot substitute the expression "Indian currency note" in place of the expression 'currency note' as has been done by the High Court. 7. Faced with the aforesaid position, as this Court has territorial jurisdiction to entertain the suit in respect of violation of copyright, learned counsel for the respondent contends that this Court will have original jurisdiction only in respect of cases contemplated by Clause 12 and other cases would not be within the original jurisdiction of the Court. The contention cannot be accepted on the face of the clear and unmnbiguous language of Clause 14. 8. We are unable to accepted the contention that the suits pertaining to infringement of copyright would not be within the original jurisdiction of this Court. The expression Ordinary Original Jurisdiction came up for consideration before the Madras High Courts in Munia Servai v. Hanuman Bank (AIR 1958 Madras 418.). In that case, the Bank was ordered to the wound up in 1947. The appellant was indebted, to the Bank. On the application of the Liquidator, the Court determined the liability of the appellant at Rs. 4,80,000/-, which was later reduced to Rs. 1,74,000/-. The amount was not paid. The Bank moved for sale of the charged properties. The orders was passed in favour of the Bank. On the application for execution having been taken out in August 1957 to execute the decree passed in 1953, the judgment debtor objected to the execution on the ground that it is time barred under Article 183 of the old Limitation Act. The Bank moved for sale of the charged properties. The orders was passed in favour of the Bank. On the application for execution having been taken out in August 1957 to execute the decree passed in 1953, the judgment debtor objected to the execution on the ground that it is time barred under Article 183 of the old Limitation Act. Article 183 of the old Limitation Act, inter alia, provided that the period of limitation for the application to enforce the judgment, decree or order of any Court established by Royal Charter in exercise of its Ordinary Original Civil Jurisdiction was 12 years. It was contended on behalf of the debtor that the decree passed by the Court in 1953 was an order passed by the Court under the Banking Companies Act of 1949, and it was not in exercise of Ordinary Original Civil Jurisdiction. In the light of this controversy, the Division Bench of the Madras High Court discussed the meaning of the expression "Ordinary Original Civil jurisdiction" and the test formulated by the Division Bench of the Madras High Court is as follows: "The expression ordinary jurisdiction embraces all such acts performed by the Court in ordinary course of law and without any special step being taken to assume the jurisdiction as opposed to extra-ordinary jurisdiction which the Court may assume at its discretion upon special occasion and by special orders." Thus, the Madras High Court held that the jurisdiction conferred in the Court by Banking Companies Act is a part of Ordinary Original Civil jurisdiction within the meaning of Article 183 of the old Limitation Act. 9. In the case of Banaras Bank Ltd. v. Jyoti Gupta and another ( AIR 1951 All. 362 .), the Allahabad High Court, after construing the provisions of Clauses 11 and 12 of the Letters Patent held that the words "Ordinary jurisdiction" embraces all Acts of the Court which are exercise in the ordinary course of law and that it was opposed to extra-ordinary jurisdiction which the Court may assume as it's discretion upon happening of special occasions. 10. In the aforesaid two decisions, therefore, it was held that the jurisdiction under the Companies Act or under the Banking Companies Act falls within the ambit of Ordinary Original Civil Jurisdiction. 11. 10. In the aforesaid two decisions, therefore, it was held that the jurisdiction under the Companies Act or under the Banking Companies Act falls within the ambit of Ordinary Original Civil Jurisdiction. 11. Applying the afore said test, we have no hesitation in coming to the conclusion that the suit fell within the purview of ordinary jurisdiction and not extra-ordinary jurisdiction as concluded by the learned Single Judge. 12. Next, the question is whether on facts, the appellant is entitled to grant of leave as sought for or not. Learned Counsel for the parties rightly adopted a just and reasonable approach and submitted that to avoid unnecessary delay and multiplicity of proceedings, this Court may examine the facts and decide whether case for grant of leave has been made out or not. Learned Counsel for the respondent, relying upon a Single Bench decision of the Madras High Court in the case of Brooke Bond India Ltd. v. Balaii Tea (India) Pvt. Ltd. (1990 I.P.L.R. 266.), contended that considering the facts and circumstances of the case, the leave deserved to be declined. It was pointed out by the learned counsel that the appellant had given legal notice to the respondent as far back as on 10th January, 1997, which was replied on 1st March, 1997 and also that a complaint was lodged by the appellant for the alleged violation of its right with the Spice Board and the Spice Board had asked the respondent by its letter dated 28th January, 1997, requiring the respondent to furnish its say on the allegations made by the appellant and on the same being done, the matter was closed by the Spice Board. That is also said to have happened at Chennai. It is also pointed out that recently in the first week of January, 1999, the appellant had filed against the respondent, a complaint under Section 483 read with Section 34 Indian Penal Code and Sections 78 and 79 of the Trade and Merchandise Marks Act, 1958 and Sections 63 and 64 of the Copyright Act, 1957 with the police department at Chennai and as such too, the appellant was not entitled to grant of leave. 13. 13. We would not like to comment in detail on the facts pointed out by the defendant lest our observation may adversely affect the parties while considering the prayers for grant of interim relief or while deciding the suit. According to the appellant, since the office of Spice Board was situated at Chennai, the complaint could only be made there and also that the Police complaint in law was required to he made at Chennai. We would only observe that facts sought to be pointed out by the respondent, on the facts and circumstances of the present case, are not quite relevant for the purpose of considering the leave application under Clause 14. It is evident that both the parties are very affluent. The respondent claims to have exported goods worth Rs. 2 crores in the containers complained of in the suit. It is said to be so doing since 1996. As already observed, one of the object for enacting Clause 14 was to avoid multiplicity of proceedings, though it may be a different matter if, on the facts and circumstances of a particular case, the Court may decline leave considering undue hardship to the respondent or other such similar ground. On facts, no such ground has been made out by the respondent in the present case. 14. In view of the aforesaid conclusion, setting aside the impugned order (reported in 1999(4) Born. C.R. 233 = 1999(3) Arb. LR 629) we allow the Appeal and grant to the appellant, the leave sought for under Clause 14 of the Letters Patent. The parties are left to bear their own costs. Appeal allowed.