Judgment 1. The plaintiff claiming to be a registered Partnership Firm, instituted this suit, inter alia, seeking to restrain the defendant from infringing the plaintiff’s copyright in respect of artistic and literary works, sound recording, film computer programme and from committing acts of passing off their products as that of the plaintiff’s by using the label/trade dress similar and/or deceptively similar to the plaintiff label/trade dress and by using the plaintiff’s trade mark ‘English Guruji’ which is deceptively similar to the plaintiff’s mark and by issuing deceptively similar advertisements of the products and by using the persona of the advertiser and its distinctive features, which is solely and exclusively associated with the plaintiff. The plaintiff has claimed reliefs, inter alia, of permanent injunction, delivery of, accounts of profit and/or damages etc.. The plaintiff has claimed reliefs, inter alia, of permanent injunction, delivery of, accounts of profit and/or damages etc.. The plaintiff has claimed following reliefs in the suit :- (a) That the Defendant by itself, its servants, directors, agents, distributors, stockists and/or any other person claiming through, by or under it be restrained by a perpetual order and injunction of this Hon’ble Court from in any manner, directly and/or indirectly, using, reproducing in any manner and/or in any format the impugned label/trade dress or exporting, or exposing for sale any goods, bearing the impugned label/trade dress, being Ex."L" hereto and/or any other label/trade dress which is a colourable imitation or substantial reproduction of the Plaintiff’s artistic works so as to infringe the Plaintiff’s copyright in the said label/trade dress, being Ex."B" and "C" hereto and/or in any manner using or reproducing the impugned literary work being Ex."M" hereto or any substantial part thereof for selling any of its products so as to infringe the Plaintiff’s copyright in the literary work being Ex."D" hereto; (b) That the Defendant by itself, its servants, directors, agents, distributors, stockists and/or any other person claiming through, by or under it be restrained by a perpetual order and injunction of this Hon’ble Court from in any manner, directly and/or indirectly, using, reproducing/ copying the contents of the compact disc of the Plaintiff being Ex.F hereto and/or using the same in any format or for sale of any of it’s products exporting or exposing for sale or communicating it to the public or issuing copies of the impugned Compact disc being Ex."N" hereto or in any other manner or form so as to infringe the plaintiff’s copyright in the literary and artistic work and the sound recording and the cinematograph film and the computer program stored/depicted in the compact disc, being Ex."F" hereto; (c) That the Defendant by itself, its servants, directors, agents, distributors, stockists and/or any other person claiming through, by or under it be restrained by a perpetual order and injunction of this Hon’ble Court from in any manner, directly and/or indirectly, using, applying, affixing the impugned mark "English Guruji" and/or any other mark similar/deceptively similar to the Plaintiff’s mark "English Guru" in respect of any goods, products or services sold by the Defendant so as to pass off or enable others to pass off the Defendant’s goods, products or services as and for the goods and services of the Plaintiff’s. (d) That the Defendant by itself, its servants, directors, agents, distributors, stockists and/or any other person claiming through, by or under it be restrained by a perpetual order and injunction of this Hon’ble Court from in any manner, directly and/or indirectly, using, affixing, applying the impugned label/trade dress being Ex."L" hereto or any other label/trade dress similar or deceptively similar to the Plaintiff’s label/trade dress being Ex.B and C hereto so as to pass off or enable others to pass off the Defendant goods as and for the goods and services of the Plaintiff. (e) That the Defendant by itself, its servants, directors, agents, distributors, broadcasting organizations/TV channels engaged by the Defendants, stockists and/or any other person claiming through, by or under it be restrained by a perpetual order and injunction of this Hon’ble Court from in any manner, directly and/or indirectly, from in any manner, directly and/or indirectly, issuing, exhibiting, showing or broadcasting on television channels or in any other electronic or print media the impugned advertisement which is being currently broadcasted/caused to be broadcasted by the Defendant on various television channels and stored in compact disc being Ex."Q" hereto or any other advertisement similar or deceptively similar to the Plaintiff’s advertisement being Ex."J" or use any of the distinctive features of the Plaintiff’s advertisement including Ex."I" hereto so as to pass off or enable others to pass off the Defendant’s advertisement as the advertisement in respect of the goods and services of the Plaintiff and be further restrained from associating itself with the plaintiff in any manner, directly or indirectly; (f) This Hon’ble Court do order and decree the Defendant to pay to the Plaintiff an amount of Rs.50,00,000/- as and by way of damages, together with interest at the rate of 24% p.a. from the date of filing of the present suit till payment and/or realization as per the Particulars of Claim Ex."U" hereto; (g) This Hon’ble Court do order the Defendant to render true and faithful account of the income earned by the Defendant by using the impugned label/trade dress and the mark English Guruji and the advertisement with the Plaintiff’s distinctive features including the distinctive features of the same and by infringing the Plaintiff’s copyright in the artistic work, literary work, sound recording, cinematograph film and computer program and do order and decree the Defendant to pay to the Plaintiff such amounts as may be found due on such account being taken; (h) the Defendant be ordered and directed to deliver up for destruction all goods, articles, dyes, printed material and things bearing the impugned trade mark and the impugned label/trade dress and/or any other label/trade dress similar and/or deceptively similar to the Plaintiff’s label/trade dress, being Ex."B" and "C" hereto and the Plaintiff’s mark English Guru and the copies of impugned advertisement being "Q" hereto and the infringing copies of the Plaintiff’s literary and artistic work and the sound recording and the cinematograph film and the computer program being Ex."F" hereto or any substantial copy or reproduction thereof; (i) That pending the hearing and final disposal of the present suit the Court Receiver, High Court, Bombay or some other fit and proper person be appointed Receiver of all the goods, articles, papers, label or any other printed material bearing the impugned label/trade dress, being Ex."L" hereto or any other label/trade dress similar and/or deceptively to the Plaintiff’s said label/trade dress being Ex."B" and "C" hereto and the impugned literary work being Ex.M hereto or any infringing copy of Ex.D hereto, and the mark English Guruji or any other similar mark to the Plaintiff’s mark English Guru and the infringing copies of the Plaintiff’s literary, artistic work, sound recording, cinematograph film, computer program being Ex."F" hereto or any substantial reproduction thereof stored in any mode or medium or format and wherever situated with all powers under Order XL of the Code of Civil Procedure, 1908, including power to take physical possession thereof with Police assistance if necessary; (j) pending the hearing and final disposal of the present suit the Defendant by itself, its servants, directors, agents, distributors, stockists and/or any other person claiming through, by or under it, be restrained by a temporary order and injunction of this Hon’ble Court from in any manner directly and/or indirectly :- (i) using, reproducing in any manner and/or in any format the impugned label/trade dress or exporting, or exposing for sale any goods, bearing the impugned label/trade dress, being Ex."L" hereto and/or any other label/trade dress which is a colourable imitation or substantial reproduction of the Plaintiff’s artistic works so as to infringe the Plaintiff’s copyright in the said label/trade dress, being Ex."B" and "C" hereto and/or in any manner using or reproducing the impugned literary work being Ex."M" hereto or any substantial part thereof for selling any of its products so as to infringe the Plaintiff’s copyright in the literary work being Ex."D" hereto; (ii) using, reproducing/ copying the contents of the compact disc of the Plaintiff being Ex.F hereto and/or using the same in any format or for sale of any of it’s products exporting or exposing for sale or communicating it to the public or issuing copies of the impugned Compact disc being Ex."N" hereto or in any other manner or form so as to infringe the plaintiff’s copyright in the literary and artistic work and the sound recording and the cinematograph film and the computer program stored/depicted in the compact disc, being Ex."F" hereto; (iii) using, applying, affixing the impugned mark "English Guruji" and/or any other mark similar/deceptively similar to the Plaintiff’s mark "English Guru" in respect of any goods, products or services sold by the Defendant so as to pass off or enable others to pass off the Defendant’s goods, products or services as and for the goods and services of the Plaintiff’s; (iv) using, affixing, applying the impugned label/trade dress being Ex."L" hereto or any other label/trade dress similar or deceptively similar to the Plaintiff’s label/trade dress being Ex.B and C hereto so as to pass off or enable others to pass off the Defendant goods as and for the goods and services of the Plaintiff. (k) pending the hearing and final disposal of the present suit the Defendant by itself, its servants, directors, agents, distributors, broadcasting organizations/TV channels engaged by the Defendants, stockists and/or any other person claiming through, by or under its, be restrained by a temporary order and injunction of this Hon’ble Court from in any manner directly and/or indirectly, issuing, exhibiting, showing or broadcasting on television channels or in any other electronic or print media the impugned advertisement which is being currently broadcasted/caused to be broadcasted by the Defendant on various television channels and stored in compact disc being Ex."Q" hereto or any other advertisement similar or deceptively similar to the Plaintiff’s advertisement being Ex."J" or use any of the distinctive features of the Plaintiff’s advertisement including Ex."I" hereto so as to pass off or enable others to pass off the Defendant’s advertisement as the advertisement in respect of the goods and services of the Plaintiff and be further restrained from associating itself with the Plaintiff in any manner, directly or indirectly; (l) for interim and ad-interim reliefs in terms of prayers (i) to (k) above; (m) for costs; (n) for such further and other reliefs as the nature and circumstances of the case may require and thought fit by this Hon’ble Court." 2. During pendency of the suit, the plaintiff took out Notice of Motion No.3402 of 2007 praying for following interim reliefs :- "(a) That pending the hearing and final disposal of the present suit the Court Receiver, High Court, Bombay or some other fit and proper person be appointed Receiver of all the goods, articles, papers, label or any other printed material bearing the impugned label/trade dress, being Ex."L" hereto or any other label/trade dress similar and/or deceptively to the Plaintiff’s said label/trade dress being Ex."B" and "C" hereto and the impugned literary work being Ex.M hereto or any infringing copy of Ex.D hereto, and the mark English Guruji or any other similar mark to the Plaintiff’s mark English Guru and the infringing copies of the Plaintiff’s literary, artistic work, sound recording, cinematograph film, computer program being Ex."F" hereto or any substantial reproduction thereof stored in any mode or medium or format and wherever situated with all powers under Order XL of the Code of Civil Procedure, 1908, including power to take physical possession thereof with Police assistance if necessary; (b) pending the hearing and final disposal of the present suit the Defendant by itself, its servants, directors, agents, distributors, stockists and/or any other person claiming through, by or under it, be restrained by a temporary order and injunction of this Hon’ble Court from in any manner directly and/or indirectly :- i. using, reproducing in any manner and/or in any format the impugned label/trade dress or exporting, or exposing for sale any goods, bearing the impugned label/trade dress, being Ex."L" hereto and/or any other label/trade dress which is a colourable imitation or substantial reproduction of the Plaintiff’s artistic works so as to infringe the Plaintiff’s copyright in the said label/trade dress, being Ex."B" and "C" hereto and/or in any manner using or reproducing the impugned literary work being Ex."M" hereto or any substantial part thereof for selling any of its products so as to infringe the Plaintiff’s copyright in the literary work being Ex."D" hereto; ii. using, reproducing/ copying the contents of the compact disc of the Plaintiff being Ex.F hereto and/or using the same in any format or for sale of any of it’s products exporting or exposing for sale or communicating it to the public or issuing copies of the impugned Compact disc being Ex."N" hereto or in any other manner or form so as to infringe the plaintiff’s copyright in the literary and artistic work and the sound recording and the cinematograph film and the computer program stored/depicted in the compact disc, being Ex."F" hereto; iii. using, applying, affixing the impugned mark "English Guruji" and/or any other mark similar/deceptively similar to the Plaintiff’s mark "English Guru" in respect of any goods, products or services sold by the Defendant so as to pass off or enable others to pass off the Defendant’s goods, products or services as and for the goods and services of the Plaintiff’s; iv. using, affixing, applying the impugned label/trade dress being Ex."L" hereto or any other label/trade dress similar or deceptively similar to the Plaintiff’s label/trade dress being Ex.B and C hereto so as to pass off or enable others to pass off the Defendant goods as and for the goods and services of the Plaintiff. using, affixing, applying the impugned label/trade dress being Ex."L" hereto or any other label/trade dress similar or deceptively similar to the Plaintiff’s label/trade dress being Ex.B and C hereto so as to pass off or enable others to pass off the Defendant goods as and for the goods and services of the Plaintiff. (c) pending the hearing and final disposal of the present suit the Defendant by itself, its servants, directors, agents, distributors, broadcasting organizations/TV channels engaged by the Defendants, stockists and/or any other person claiming through, by or under its, be restrained by a temporary order and injunction of this Hon’ble Court from in any manner directly and/or indirectly, issuing, exhibiting, showing or broadcasting on television channels or in any other electronic or print media the impugned advertisement which is being currently broadcasted/caused to be broadcasted by the Defendant on various television channels and stored in compact disc being Ex."Q" hereto or any other advertisement similar or deceptively similar to the Plaintiff’s advertisement being Ex."J" or use any of the distinctive features of the Plaintiff’s advertisement including Ex."I" hereto so as to pass off or enable others to pass off the Defendant’s advertisement as the advertisement in respect of the goods and services of the Plaintiff and be further restrained from associating itself with the Plaintiff in any manner, directly or indirectly; (d) for interim and ad-interim reliefs in terms of prayers (a) to (c) above; (e) for costs of this Notice of Motion; (f) for such further and other reliefs as the nature and circumstances of the case may require and thought fit by this Hon’ble Court." 3. The Notice of Motion was moved on 4th September 2007 for ex-parte orders against the defendant. The same was entertained in view of the statement made in the plaint, in particular paragraph 58 of the plaint. This Court by order passed on 4th September 2007 was pleased to grant ex-parte ad-interim relief in terms of prayer clauses (a), (b) and (c) of the motion, which was to operate till the returnable date of the motion, which was 17th September 2007. The plaintiff was directed to comply with the requirements of Order XXXIX, Rule 3 of the Code of Civil Procedure after the Receiver took over possession of the suit property. The plaintiff was directed to comply with the requirements of Order XXXIX, Rule 3 of the Code of Civil Procedure after the Receiver took over possession of the suit property. During pendency of this motion the plaintiff has taken out two separate proceedings being Chamber Summons No.1640 of 2007 and Notice of Motion No.3737 of 2007. In Chamber Summons No.1640 of 2007 the plaintiff seeks liberty to amend the plaint in terms of the draft amendment set out in the Schedule annexed thereto. The proposed draft amendment is that the words "duly registered under the Partnership Act, 1872" appearing after the words "partnership firm" in the second line of the cause title be permitted to be deleted. Similarly, the words "and registered on 16th February 2006" appearing in 7th line of paragraph 16 on page 13 of the plaint be permitted to be deleted. In other words, by way of this amendment, the plaintiff seeks liberty to resile from the statement made in the plaint that it is a registered partnership firm. Similarly, the words "and registered on 16th February 2006" appearing in 7th line of paragraph 16 on page 13 of the plaint be permitted to be deleted. In other words, by way of this amendment, the plaintiff seeks liberty to resile from the statement made in the plaint that it is a registered partnership firm. Be that as it may, the plaintiff has taken out another Notice of Motion being Notice of Motion No.3737 of 2007 for following reliefs :- (a) That the defense to the suit, if any, of the Defendant be struck out and the above suit be set down on board for passing a decree as prayed in favour of the Plaintiff against Defendant; (b) That by reason of willful disobedience and breach committed by the Defendant of the order dated 4th September 2007 of this Hon’ble Court, all properties owned by the Defendants, its directors and/or their relatives and or its subsidiaries and wherever situated be attached by and under a warrant of attachment; (c) That the Court Receiver, High Court Bombay be appointed as receiver in respect of all properties owned by the Defendants, its directors and/or their relatives and or its subsidiaries and wherever situated with all powers under O. XL Rule 1 of the Code of Civil Procedure Code, 1908 including power to take forcible possession including with police assistance, if required; (d) That the Directors of the Defendant be accordingly be dealt under Order XXXIX Rule 2-A of the Code of Civil Procedure, 1908 by sentencing all the directors of the Defendant to civil prison for such period as may be thought fit by this Hon’ble Court; (e) for ad-interim reliefs in terms of prayer (a) and (b) above; (f) for costs; (g) for such further and other reliefs as the nature and circumstances of the case, may require and thought fit by this Hon’ble Court." 4. In substance, the case made out in the affidavit in support of this motion, is that, inspite of the order of injunction dated 4th September 2007, the defendant has continued to market the offending product for which reason appropriate action is required to be taken against the defendant, as prayed for. 5. All these proceedings were listed before me on 5th October 2007. 6. I have heard Advocate Mr.Jamsandekar for the plaintiff and Mr.Madon for the defendant. 5. All these proceedings were listed before me on 5th October 2007. 6. I have heard Advocate Mr.Jamsandekar for the plaintiff and Mr.Madon for the defendant. According to the plaintiff, the ex-parte ad-interim order already granted on 4th September 2007 be continued until decision on Notice of Motion No.3737 of 2007 is rendered. This is so because, the defendant has committed breach of the order of injunction passed by this Court, for which reason its defence deserves to be struck off. Until that issue was to be decided, the defendant cannot be heard on merits. 7. On the other hand, the counsel for the defendant insisted that the decision on the said Notice of Motion No.3737 of 2007 be deferred; and instead the Court may consider the issue of continuing or non-continuing the ex-parte ad-interim order granted on 4th September 2007, in the first place. According to the defendant, the plaintiff has not approached this Court with clean hands and in fact this Court has no territorial jurisdiction to entertain the present suit. The defendant also asserts that this Court was persuaded to grant ex-parte ad-interim relief on 4th September, 2007 by misrepresenting the material facts. Both sides argued the matter in detail on merits of the respective contentions. 8. After having considered the rival submissions I shall now straight way proceed to examine the question whether the ad-interim order ought to be continued till the decision on Notice of Motion No.3737 of 2007. In my opinion, if the defendant is right in contending that the plaintiff has not approached this Court with clean hands and that this Court has no territorial jurisdiction, it will be but appropriate that the issue raised on behalf of the defendant be addressed at the first instance. In the event the plaintiff succeeds on that question, the matter can proceed further by continuing the ad-interim order till final disposal of two Notice of Motions taken out before this Court. 9. Insofar as the issue as to whether this Court has territorial jurisdiction to try and decide the plaint as presented is concerned, that will have to be addressed on the basis of the averments in the plaint. In the cause title, the plaintiff has disclosed that it has it’s office at 203, Apollo Avenue, Old Palassia, Indore and having branch office at D-4-64, Deepmaala Co-op. Housing Society, Mhada, Andheri (West), Mumbai-400 053. In the cause title, the plaintiff has disclosed that it has it’s office at 203, Apollo Avenue, Old Palassia, Indore and having branch office at D-4-64, Deepmaala Co-op. Housing Society, Mhada, Andheri (West), Mumbai-400 053. In paragraph 1 the plaintiff asserts that it is in the business of providing services in the area of education and also selling educational products through Telemarketing (Tele Shopping). It is then stated that the office of the plaintiff is at Indore and branch office is at Mumbai as stated in the cause title. The plaintiff has then mentioned of products marketed by the plaintiff in respect of which the plaintiff claims ownership. In paragraph 2 of the plaint it is stated that the defendant is a private limited company incorporated under the provisions of the Companies Act, 1956 and has introduced a similar product as that of the plaintiff by, inter alia, copying/reproducing the plaintiff’s artistic, literary work, sound recording, cinematograph film, computer programme and by committing acts of passing off by adopting deceptively similar work, label/trade dress and using the plaintiff’s distinctive features of the tele-advertisement and by copying the same and using the persona of the plaintiff’s advertisement. In paragraph 3 the plaintiff has referred to the reliefs claimed by the plaintiff and the reason for instituting the suit. In paragraph 4 onwards the plaintiff has dealt with the concise statement of facts and circumstances leading to and/or necessitating filing of the present suit. In substance, the plaintiff has asserted as to how the product in question has been owned by it and the peculiarities of the said product which has received recognition in the market associated with the name of the plaintiff. Relevant facts in that behalf are stated in paragraph 23 of the plaint. In paragraph 24 of the plaint the plaintiff asserts that the defendant is dishonestly trying to encash the goodwill and reputation of the plaintiff by infringing copyright and trade mark of the plaintiff. Paragraphs 25 to 32 of the plaint deal with the steps taken by the plaintiff to popularize the product in question. Paragraph 33 onwards the plaintiff has asserted as to how the defendant was exploiting the reputation of the plaintiff in the products by slavishly copying the label/trade dress, artistic works, colour scheme, get up and layout, which was adopted by the plaintiff. Paragraph 33 onwards the plaintiff has asserted as to how the defendant was exploiting the reputation of the plaintiff in the products by slavishly copying the label/trade dress, artistic works, colour scheme, get up and layout, which was adopted by the plaintiff. That discussion is found in paragraphs 32 to 41 of the plaint. In paragraph 40 of the plaint it is asserted that the plaintiff was shocked to notice that the defendant has also copied the plaintiff’s compact disc titled ‘computer learning course’ which is distributed by the plaintiff along with its educational product. Details in that behalf are provided in the same paragraph. With regard to considering the issue of territorial jurisdiction of this Court, the only averment that can be found is in paragraph 44 of the plaint where the plaintiff has asserted that the plaintiff was shocked when the plaintiff’s representative called on the Cellular No.93009 00500 of the defendant which is being used by the defendant to sell the offending product. No material facts have been provided in this para - as to the name of the representative of the plaintiff who had called-from which number and from which place. Suffice it to observe that there is no mention in this paragraph that the telephone call made on the said cellular number of the defendant was from Mumbai. That is not the case of the plaintiff. Reading the entire plaint parawise or for that matter as a whole, there is no other averment in the plaint as to how, when and which part of the cause of action has arisen in Mumbai, which is within the territorial jurisdiction of this Court. The only other averment that can be referred to is paragraph 59 of the plaint, which deals with the cause of action, reads thus :- "59. The cause of action has arisen after the Plaintiff learnt about the Defendant’s products being sold in the market with the impugned label/trade dress and the mark English Guruji on 17/08/07. The Plaintiff has purchased the infringing products of the Defendant from the market. The Plaintiff craves leave to refer to and rely upon the invoices in this regard when produced. The entire claim of the Plaintiff is therefore within time. The Plaintiff has purchased the infringing products of the Defendant from the market. The Plaintiff craves leave to refer to and rely upon the invoices in this regard when produced. The entire claim of the Plaintiff is therefore within time. The Plaintiff states that there is no delay on its part in approaching this Hon’ble Court and they have approached this Hon’ble Court with utmost diligence and not barred by Law of Limitation." 10. Once again this paragraph does not disclose the material facts as to which part of the cause of action arose in Mumbai within the jurisdiction of this Court. The plaintiff may at best rely on paragraph 61 of the plaint which reads thus :- "61. The Plaintiff is carrying on business in Mumbai. The Defendant is selling and or offering for sell their products in Mumbai and as such the entire cause of action has arisen in Mumbai. This Hon’ble Court therefore has jurisdiction to entertain, try and dispose off this suit." 11. On reading the plaint as a whole, the plaintiff admits that the defendant’s ordinary place of business is at Indore, which is not within the jurisdiction of this Court. However, the plaintiff has approached this Court on the principal assertion that the plaintiff is carrying on business in Mumbai. The address from where the plaintiff is carrying on the business in Mumbai, has been mentioned in the cause title of the plaint. The only other assertion made in paragraph 61 is that the defendant was selling and/or offering for sell its products in Mumbai. In the entire plaint, however, no material fact is disclosed as to how, where and when the defendant was found to be selling its products in Mumbai. Significantly, it cannot be the plaintiff’s case that the "whole" cause of action of this suit is within the jurisdiction of this Court. 12. For the purpose of considering the jurisdiction of the Court of competent jurisdiction, relating to the action of infringement of copyright, can be maintained, we can usefully refer to Section 62 of the Copyright Act, 1957. Section 62 of Copyright Act reads thus :- "62. 12. For the purpose of considering the jurisdiction of the Court of competent jurisdiction, relating to the action of infringement of copyright, can be maintained, we can usefully refer to Section 62 of the Copyright Act, 1957. Section 62 of Copyright Act reads thus :- "62. Jurisdiction of court over matters arising under this Chapter.- (1) Every suit or other civil proceeding arising under this Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted in the district court having jurisdiction. (2) For the purpose of sub-section (1), a "district court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any other law for the time being in force, include a district court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain." 13. Sub section (2) of Section 62 of Copyright Act stipulates that for the purpose of action or remedy referred to in sub section (1), a "district court having jurisdiction" shall, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceedings, the person instituting the suit or other proceeding or, where there are more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain. This provision is notwithstanding the provisions of the Code of Civil Procedure or any other Law for the time being in force. Going by the assertions made in the plaint, it does appear that the plaintiff has stated that the plaintiff is engaged and/or carrying on business in Mumbai which fact has been stated in paragraphs 1, 59 and 61 of the plaint, to be read with the cause title of the plaint. Whether this fact asserted is correct, is a matter which will be addressed a little latter. However, if the case made out by the plaintiff is to be found to be incorrect, in that case, this Court will have no territorial jurisdiction to examine the action brought before this Court. Whether this fact asserted is correct, is a matter which will be addressed a little latter. However, if the case made out by the plaintiff is to be found to be incorrect, in that case, this Court will have no territorial jurisdiction to examine the action brought before this Court. Inasmuch as, if the plaintiff is not residing or carrying on business or personally working for gain in Mumbai which is the jurisdiction of this Court, this Court will lack territorial jurisdiction to try and decide the actions of infringement of copyright. 14. The other enactment that has some bearing on the question to be decided, is the provisions of the Trade Marks Act, 1999. Section 134 of the said Act reads thus :- "134. Suit for infringement, etc. to be instituted before District Court.- (1) No suit - (a) for the infringement of a registered trade mark; or (b) relating to any right in a registered trade mark; or (c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff’s trade mark, whether registered or unregistered, shall be instituted in any Court inferior to a District Court having jurisdiction to try the suit. (2) For the purpose of clauses (a) and (b) of sub-section (1), a "District Court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, the time of the institution of the suit or other proceedings, the person instituting the suit or proceedings, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain. Explanation.- For the purposes of sub-section (2), "person" includes the registered proprietor and the registered user." 15. In the present case, we are not concerned with the action of infringement of registered trade mark or relief of any right in the registered trade mark as such. Explanation.- For the purposes of sub-section (2), "person" includes the registered proprietor and the registered user." 15. In the present case, we are not concerned with the action of infringement of registered trade mark or relief of any right in the registered trade mark as such. The action before this Court, at best, would be covered by clause (c) of sub section (1) of Section 134 of the Trade Marks Act, which relates to action of passing off arising on account of the use by the defendant of any trade mark which is identical with or deceptively similar with the plaintiff’s trade mark, whether registered or unregistered. In relation to the said action, provisions of sub section (2) of Section 134 of the Trade Marks Act will have no application, as the same relate to situations provided in clauses (a) and (b) of sub section (1) of Section 134 of the Trade Marks Act. Thus understood, the question as to the territorial jurisdiction of this Court to try and decide the action of infringement of Trade marks or passing off, will have to be addressed on the basis of the provisions of the other Law as applicable. The other Law would be Code of Civil Procedure. 16. Counsel for the plaintiff has relied on Section 20 of the Code in particular clause (c) thereof, to contend that this Court will have jurisdiction if the cause of action, wholly or in part, arises within the jurisdiction of this Court. 17. The argument has been rightly countered by the counsel for the defendant being devoid of merits, relying on Section 120 of the Code, which clearly excludes application of Section 20 of the Code. Section 120 of the Code reads thus:- "120. Provisions not applicable to High Court in original civil jurisdiction.- (1) The following provisions shall not apply to the High Court in the exercise of its original civil jurisdiction, namely, sections 16, 17 and 20." . In other words, Section 20 of the Code will have no application to the case on hand. It is well established that the principle underlying Section 20 of the Code cannot be pressed into service, insofar as suit filed before the High Court which has been invested with the original jurisdiction by virtue of Letters Patent. 18. The plaintiff, at best, can usefully rely on Section 19 of the Code, which reads thus:- "19. It is well established that the principle underlying Section 20 of the Code cannot be pressed into service, insofar as suit filed before the High Court which has been invested with the original jurisdiction by virtue of Letters Patent. 18. The plaintiff, at best, can usefully rely on Section 19 of the Code, which reads thus:- "19. Suits for compensation for wrongs to person or movables.- Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the opinion of the plaintiff in either of the said Courts". 19. This is so because, the plaintiff is also claiming relief of compensation for the wrongs committed by the defendant. However, insofar as such action is concerned, the Court of competent jurisdiction would be one where the wrong has been done within its local limits (jurisdiction). The other Court which may have jurisdiction to try and decide the action, would be where the defendant resides or carries on business. In this case, the defendant has its office and is carrying on business at Indore and not within Mumbai. In that case, first part of Section 19 of the Code may be attracted. However, as mentioned earlier, it is not the case of the plaintiff that the whole of cause of action has arisen within the local limits (jurisdiction) of this Court. 20. The plaintiff’s counsel however, would contend that the "part of" cause of action has arisen within the jurisdiction of this Court. For that reason it is open to the plaintiff to institute the suit before this Court for the legal remedies available to the plaintiff in law. Assuming that the plaintiff’s contention was to be accepted, that can be considered only in the context of Clause 12 of the Letters Patent of the Bombay High Court. Clause-12 of the Letters Patent reads thus:- "12. Assuming that the plaintiff’s contention was to be accepted, that can be considered only in the context of Clause 12 of the Letters Patent of the Bombay High Court. Clause-12 of the Letters Patent reads thus:- "12. Original Jurisdiction as to suits: And We do further ordain that the said High Court of Judicature at Bombay, in the exercise of its ordinary original civil jurisdiction, shall be empowered to receive, try, and determine suits of every description, if, in the case of suits for land or other immovable property such land or property shall be situated, or in all other cases if the cause of action shall have arisen, either wholly, or in case the leave of the Court shall have been first obtained, in part, within the local limits of the ordinary original jurisdiction of the said High Court, or if the defendant at the time of the commencement of the suit shall dwell or carry on business, or personally work for gain, within such limits; except that the said High Court shall not have such original jurisdiction in cases falling within the jurisdiction of the Small Causes Court at Bombay, in which the debt or damage, or value of property sued for does not exceed one hundred rupees." 21. It is well established that Clause-12 of the Letters Patent, the High Court in exercise of its ordinary original jurisdiction, will have power to receive, try and determine :- (i) suits for "land or other immovable property" if such property is situated within the local limits of original jurisdiction of the High Court; or (ii) all other cases : (a) if the cause of action has arisen "wholly" within the local limits of the ordinary original jurisdiction of the High Court; (b) if prior leave of the Court has been obtained and the cause of action has arisen "in part" within the local limits of the ordinary original jurisdiction of the High Court; or (c) if the defendant dwells or carries on business or personally works for gain within such limits. (See : Adcon Electronics (P) Ltd. Vs. Daulat reported in (2001)-7-SCC-698). 22. In the present case, we are not concerned with the dispute regarding land or other immovable property; nor it is a case where the "whole" of cause of action has arisen within the jurisdiction of this Court. (See : Adcon Electronics (P) Ltd. Vs. Daulat reported in (2001)-7-SCC-698). 22. In the present case, we are not concerned with the dispute regarding land or other immovable property; nor it is a case where the "whole" of cause of action has arisen within the jurisdiction of this Court. Assuming that the plaintiff’s case is that the "part of" cause of action has arisen within the jurisdiction of this Court, which would entitle this Court to proceed in the matter, in such a case, under Clause-12 of the Letters Patent, the plaintiff is first required to obtain leave of this Court-which admittedly has not been taken in this case. Unless such a leave was to be obtained, the plaintiff could not have moved for ex-parte ad-interim relief or for that matter applied for interim relief before this Court. The only other situation where the plaintiff could have brought an action in this Court, would be if the defendant were carrying on business or personally working for gain within the jurisdiction of this Court. That has no application to the case on hand. 23. The next question is whether the plaintiff has made out any case regarding part of cause of action having arisen within the limits of this Court. While analysing the averments in the plaint, I have adverted to the relevant paragraphs. Even if the plaint is read as a whole, there is "no material fact" disclosed by the plaintiff as to which part of the cause of action has arisen in Mumbai, except a bald statement made in paragraph 61 of the plaint. On this finding, it will necessarily follow that this Court will have no territorial jurisdiction as the defendant has its office and is carrying on business at Indore, which is not within the jurisdiction of this Court. 24. There is yet another aspect which needs to be considered in the context of the issue of territorial jurisdiction of this Court. In the reply affidavit filed by the defendant, sworn by Anuj Agarwal, dated 27th September 2007, it is stated in paragraph 4 as under :- "4. I say that this Hon’ble Court has no jurisdiction to entertain and try the suit. In the reply affidavit filed by the defendant, sworn by Anuj Agarwal, dated 27th September 2007, it is stated in paragraph 4 as under :- "4. I say that this Hon’ble Court has no jurisdiction to entertain and try the suit. The Plaintiff neither voluntarily resides nor personally works for gain or has place of residence within the jurisdiction of this Hon’ble Court, and this Hon’ble has no jurisdiction to entertain and try the present suit. The Plaintiff misled this Hon’ble Court with false and bogus information that they either voluntarily reside or personally work for gain or have place of business in Mumbai. In fact the place of business shown by the Plaintiffs in the cause title neither belongs to the Plaintiffs’ nor they carry on business from that address, i.e. D-4-64, Deep Mala Co-operative Housing Society, MHADA, Andheri (West), Mumbai - 400 053, or they work for gain at the said address. The said place and/or address belongs to one Mr.Yogesh Govind More, carrying on business in the name and style of Cherish Creation. Hereto annexed and marked Exhibit "2" is the Electric Bill of Reliance Energy issued at the said address in the name of Yogesh Govind More. Hereto annexed and marked Exhibit "3" is the visiting card of Cherish Creation of Yogesh Govind More Exhibit 3-A is an affidavit. It is pertinent to note that Dedipya Bhanu who has filed supporting affidavit dated 31 August 2007 in support of the Plaintiff’s notice of motion shown his/ her address as D-4-64, Deep Mala Co- Operative Housing Society, MHADA, Andheri (West), Mumbai - 400 053. Thus, it is clear that the Plaintiff has no branch office in Mumbai. It is therefore, submitted that there is no cause of action arisen in Mumbai to file the suit. On this ground alone, the notice of motion and the suit are liable to dismissal." 25. In response to the above averments made by the defendant, the plaintiff has chosen to reply in paragraph 19 of the rejoinder affidavit, which reads thus :- "19. With reference to para 4 of the said Affidavit, I deny that this Hon’ble Court has no jurisdiction to try the present suit. With further reference to the said paragraph I deny that the Plaintiff has in anyway misled this Hon’ble Court as alleged. With reference to para 4 of the said Affidavit, I deny that this Hon’ble Court has no jurisdiction to try the present suit. With further reference to the said paragraph I deny that the Plaintiff has in anyway misled this Hon’ble Court as alleged. I repeat and reiterate that the Plaintiff has a place of business at the address mentioned in the cause title. Without prejudice and in any event, I submit that the jurisdiction for an action for passing off lies at the place where the infringing goods are being sold or made available or where the same are offered for sale or where the acts of passing off are committed. In the present case the acts of passing off are committed by the Defendant within the jurisdiction of this Hon’ble Court by selling/offering for sale its products. I say that the advertisement in respect of the impugned product were within the jurisdiction of this Hon’ble Court. The acts of passing off are committed by the Defendant within the jurisdiction of this Hon’ble Court. I say that the Court Receiver appointed by this Hon’ble Court raided the premises at Andheri & Malad which is within the jurisdiction of this Hon’ble Court, where the infringing products of the Defendant were found to be sold." 26. It is seen that the defendant, besides affidavit of Anuj Agarwal, is also relying on documentary evidence in the shape of electricity bill of Reliance Energy in relation to the premises allegedly occupied by the plaintiff as its branch office in Mumbai. The said electricity bill, however, clearly discloses that the electric meter provided for the stated premises stands in the name of Yogesh Govind More. The address mentioned therein is D-4 Deepmala CHS Ltd., Plot No.64, RSC-23, Versova, Andheri West, Mumbai 400 058. This is precisely the address furnished by the plaintiff as its Branch Office address in Mumbai. Besides, the defendant has also relied on the visiting card of said Yogesh Govind More which discloses the same address in which the plaintiff claims to be operating its branch office in Mumbai. The visiting card of Yogesh G. More discloses that he is doing the business in the said premises in the name of "Cherish Creation". More importantly, the defendant has relied on the affidavit of Yogesh G. More sworn on 26th September 2007. The visiting card of Yogesh G. More discloses that he is doing the business in the said premises in the name of "Cherish Creation". More importantly, the defendant has relied on the affidavit of Yogesh G. More sworn on 26th September 2007. He has categorically asserted that he is doing business in the stated address disclosed by the plaintiff as its branch office at Mumbai. He has asserted that he is engaged in the business, in the name of "Cherish Creation", on the said address and that, except him, no one was using the said premises for any other purpose. In spite of this clear case made out by the defendant supported by documentary evidence and the affidavit of an independent person, the plaintiff has only chosen to generally deny the claim of the defendant that this Court has no jurisdiction. No details as to why the said stand of the defendant is incorrect or unacceptable, is spelt out. Significantly, the plaintiff has not even bothered to deny the assertion made in the reply affidavit filed by the defendant and particularly the affidavit of Yogesh G. More. It necessarily follows that, the plaintiff has implicitly admitted the claim of the defendant in that behalf. For, the falsity of the case made out by the defendant has remained unchallenged. The plaintiff, on the other hand, has merely chosen to state the legal position that this Court will have jurisdiction as the acts of passing off are committed by the defendant within the jurisdiction of this Court by selling/offering for sell its products. It is stated in the rejoinder affidavit in paragraph 19 that the advertisements in respect of the impugned product were published within the jurisdiction of this Court. No material facts with regard to the said assertion have been provided either in the plaint or spelt out in the rejoinder affidavit by the plaintiff. The plaintiff, however, would like to now assert in the rejoinder affidavit that the defendant was engaged in business in Mumbai as the offending goods seized by the Court Receiver during the raid were recovered from Andheri and Malad within the jurisdiction of this Court. In the plaint as filed, the case of the plaintiff is that the defendant was engaged in business at Indore. There is not even a remote reference that the defendant was engaged in conducting its business from Mumbai. In the plaint as filed, the case of the plaintiff is that the defendant was engaged in business at Indore. There is not even a remote reference that the defendant was engaged in conducting its business from Mumbai. The plaintiff having failed to provide any specific material facts in that behalf, cannot succeed in persuading this Court that the defendant has committed the offending action within the jurisdiction of this Court either in whole or in part. 27. A priori, the issue of territorial jurisdiction of this Court will have to be answered against the plaintiff. 28. In fact, from the case made out by the defendant, the defendant has established that the plaintiff has dishonestly asserted that it was carrying on business from branch office in Mumbai. The plaintiff had the audacity of giving the false address in the plaint with which it had no causal connection. The plaintiff has not even bothered to deny the case made out by the defendant that the premises at the said address, was, in fact, used exclusively by one Yogesh G. More. No attempt is made by the plaintiff to challenge the affidavit of Yogesh G. More or the case made out by the defendant in that behalf. The defendant therefore, is justified in contending that the plaintiff has not approached this Court with clean hands. Incidentally, the plaintiff had made another incorrect statement in the plaint that the plaintiff was a registered firm, when in fact it was not. That, however, is not relevant for deciding the issue of territorial jurisdiction of this Court. 29. From the discussion in the foregoing paragraphs, I have no hesitation to hold that-as neither the defendant resides or is conducting the business within the jurisdiction of this Court nor the whole of the cause of action has arisen within the jurisdiction of this Court, coupled with the fact that the plaintiff has provided no material fact as to which part of the cause of action has arisen within the jurisdiction of this Court and assuming that the part of cause of action had arisen within the jurisdiction of this Court, the plaintiff has not taken prior leave under Clause-12 of the Letters Patent of Bombay High Court, this Court will have no territorial jurisdiction to try and decide the action brought by the plaintiff. Significantly, in this case, the plaintiff has not only dishonestly provided wrong address in the cause title to institute the present suit but also circulated the matter for ex-parte ad-interim relief and persuaded this Court to pass drastic order against defendant knowing full well that it did not have its registered office or for that matter branch office within the jurisdiction of this Court. In this view of the matter, the Notice of Motion under consideration for grant of interim relief during pendency of the suit, being Notice of Motion No.3402 of 2007, deserves to be dismissed with exemplary costs. 30. The plaintiff having persuaded this Court to pass a drastic ex-parte order against the defendant, by falsely asserting that it has its branch office in Mumbai, the plaintiff shall be liable to pay a sum of Rs.25,000/- (Rs. Twenty five thousand only) to the defendant before the returnable date of the suit, as the defendant, across the bar, claimed that it has suffered loss on account of the order passed by this Court exceeding Rs.1.00 lakh (Rs.One lakh only). The cost imposed, as aforesaid, in the sum of Rs.25,000/-, is only a token compensation to the defendant for the wrong committed by the plaintiff, being exemplary costs. It will be open to the defendant to pursue such other claim/s against the plaintiff as may be advised and permissible in law, which may include initiating an action for having committed perjury of filing false affidavit before this Court and using the same in proceedings before this Court claiming it to be true-to the effect that it has its branch office at Mumbai on the address furnished in the cause title, which fact has now been established to be false and misleading statement made by the plaintiff. 31. Besides paying exemplary costs to the defendant, the plaintiff shall give due publicity of the fact that the ex-parte ad-interim order passed in their favour has been vacated by this Court on the finding that Mumbai Court has no territorial jurisdiction. That publicity be given, more prominently in Indore, where the defendant has its ordinary place of business. That be done within two weeks from today, failing which it will be open to the defendant to give appropriate publicity in the local news paper and to recover costs of such expenses from the plaintiff, if they so desire. That publicity be given, more prominently in Indore, where the defendant has its ordinary place of business. That be done within two weeks from today, failing which it will be open to the defendant to give appropriate publicity in the local news paper and to recover costs of such expenses from the plaintiff, if they so desire. This is the only way in which the Court can correct its mistake which was caused on account of misrepresentation by the plaintiff. 32. Insofar as Notice of Motion No.3737 of 2007 is concerned, ordinarily the case made out in this motion of one of breach of order of injunction passed by the Court committed by the defendant, ought to be examined independently. However, in the fact situation of the present case, as the plaintiff has approached this Court with unclean hands and has persuaded this Court to pass ad-interim ex-parte orders against the defendant, in my opinion, at least the plaintiff cannot be heard to make a grievance of infringement by the defendant including of any order passed by this Court. Notably, the defendant is challenging the assertion made by the plaintiff that it has committed any breach of any order of this Court. The defendant’s counsel during the argument demonstrated that the invoice relied upon by the plaintiff Exhibit-C to the motion, is a fabricated document. It is not necessary for me to examine this contention as I am not inclined to entertain this motion at the instance of the plaintiff. Accordingly, even Notice of Motion No.3737 of 2007 is dismissed with exemplary costs which is already provided in the earlier part of this order. 33. It is made clear that the Court Receiver will be free to recover from the plaintiff all expenses incurred by the Court Receiver or his nominee(s) for the purpose of executing the injunction order passed on 4th September 2007. 34. Insofar as Suit and Chamber Summons are concerned, the same be placed on 29th October 2007 for appropriate orders. As this Court has already recorded a finding that this Court has no territorial jurisdiction, the question of granting reliefs as prayed in the Chamber Summons will not arise. However, those questions can be considered at the appropriate stage. 35. 34. Insofar as Suit and Chamber Summons are concerned, the same be placed on 29th October 2007 for appropriate orders. As this Court has already recorded a finding that this Court has no territorial jurisdiction, the question of granting reliefs as prayed in the Chamber Summons will not arise. However, those questions can be considered at the appropriate stage. 35. Needless to observe that the Court Receiver shall forthwith hand over all the goods seized by him in pursuance of order dated 4th September 2007 to the defendant. 36. It is further clarified that as I have declined to grant relief to the plaintiff on the finding on the issue of territorial jurisdiction of this Court, I did not think it proper to address myself to the merits of the contentions, although I find that defendant has made out formidable case in their defence. 37. For the limited issue that has been considered in this judgment, I have not adverted to the various reported decisions pointed out by the counsel for the plaintiff in relation to other issues, in the present judgment. 38. All concerned to act on the authenticated copy of this order issued by the Registry.