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2008 DIGILAW 162 (DEL)

BATA INDIA LIMITED v. VITA FLEX MAUCH GMBH

2008-02-13

HIMA KOHLI

body2008
JUDGMENT Hima Kohli, J.-The present application is preferred by the defendant under Order 7 Rule 11 of the Code of Civil Procedure (for short CPC) stating inter alia that the plaint of the plaintiff may be returned for being presented to the appropriate Court as this Court does not have the territorial jurisdiction to try and entertain the suit instituted by the plaintiff. 2. Briefly stated, the facts of the case are that the plaintiff has instituted a suit against the defendant for restraining the defendant from issuing threats of legal proceedings to the plaintiff in terms of their legal notice dated 3rd April, 2006, as also for a declaration that the threats extended by the defendant to plaintiff are unjustified and the plaintiff is not infringing the legal rights of the defendant as alleged in its notice. Apart from the above, the plaintiff has also claimed damages to the tune of Rs. 20 lacs from the defendant for extending unjustifiable threats to it. 3. Notice was issued on the suit on 24th May, 2006. Appearance was entered on behalf of the defendant on 11 th October, 2006 and time sought to file the written statement. The written statement was filed by the defendant on 22nd October, 2006. After filing the written statement, the defendant also filed the present application on 15th November, 2006. 4. It was contended by the Counsel for the defendant that this Court does not have the territorial jurisdiction to try and entertain the present suit and that the admitted position of facts between the parties is that the plaintiff is a company having its registered office at Kolkata and the defendant is residing and carrying on its business in Germany. It was further argued that the plaintiff had failed to produce any documentary evidence to show that the defendant was carrying on its business partly or otherwise within the territory of this Court and that the legal notice issued by the defendant, on the basis of which the suit has been instituted by the plaintiff was also received by the plaintiff at a place, outside the jurisdiction of this Court. In support of his contention that this Court lacks the territorial jurisdiction to try and entertain the present suit, Counsel for the defendant has placed reliance on a Full Bench judgment of this Court in the case of Girdhari Lal Gupta v. M/s K.Gian Chand Jain & Co., reported as AIR 1978 Delhi 146. 5. The aforesaid application is opposed by the Counsel for the plaintiff who stated that the plaintiff carries on extensive business through its retail outlets within the territorial jurisdiction of this Court and that cause of action has arisen within the jurisdiction of this Court, for the reason that the threats extended by the defendant to the plaintiff are capable of jeopardizing the plaintiffs business within the jurisdiction of this Court. Counsel for the plaintiff contended that the plaintiff is affected by the dynamic effect of the defendants alleged patent application No. 01251 /CHENP 12003 which is sought to be used against the plaintiffs business. The plaintiff contends that it has based the suit against the defendant on an enforceable claim as provided for under Section 142 of the Trade Marks Act, 1999 and Section 106 of the Patents Act, 1970 which deal with the remedies available to a person aggrieved by groundless threats of legal proceedings by bringing a suit against a person who extends the threat, to obtain a decree of declaration, injunction, damages, etc. as envisaged under the aforesaid provisions. 6. Thus it was submitted on behalf of the plaintiff that the location of the registered office of the plaintiff or the place of receipt of the legal notice issued by the defendants to the plaintiff, in an action to restrain groundless threats of legal proceedings is irrelevant and the only relevant consideration is the effect of the threat extended by the defendant, on the business of the plaintiff. It is also the contention of the Counsel for the plaintiff that the defendants place of business is irrelevant for the reason that the defendant has submitted to the jurisdiction of this Court by threatening the plaintiffs business in Delhi. 7. I have heard the Counsel for the parties. To determine as to whether any part of the cause of action has arisen within the territorial jurisdiction of this Court, it will be relevant to examine para 17 of the plaint which deals with the jurisdictional aspect and is reproduced hereinbelow: "17. 7. I have heard the Counsel for the parties. To determine as to whether any part of the cause of action has arisen within the territorial jurisdiction of this Court, it will be relevant to examine para 17 of the plaint which deals with the jurisdictional aspect and is reproduced hereinbelow: "17. That this Honble Court has territorial jurisdiction to entertain and try the present suit under Section 20 of the Code of Civil Procedure, as the cause of action has arisen in the National Capital Region in which the plaintiff carries on an extensive business through the sale or advertisement of its goods and such business is likely to be adversely affected by the groundless threats issued by the defendant to the plaintiffs group company. In fact, the plaintiff is aggrieved by the dynamic effect of the patent application No.01251/CHENP /2003 which is sought to be wrongfully used against the plaintiff and its group companies." 8. Section 20 of the CPC referred to in para 17 of the plaint, mandates as below: "20. Other suits to be instituted where defendants reside or cause of action arises-Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction- (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. A corporation shall be deemed to carryon business as its sole or principal office in [India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. " 9. In the course of the arguments, Counsel for the defendant submitted that the defendant neither actually and voluntarily resides, nor carries on business or works for gain at the time of commencement of the suit, at Delhi. " 9. In the course of the arguments, Counsel for the defendant submitted that the defendant neither actually and voluntarily resides, nor carries on business or works for gain at the time of commencement of the suit, at Delhi. He further relied on Sub-section (c) of Section 20 of CPC to state that no cause of action, wholly or in part has arisen in favour of the plaintiff within the jurisdiction of this Court and thus the plaint is liable to be rejected. 10. While determining, as to what would constitute cause of action, the Supreme Court in the case of Om Prakash Srivastava v. Union of India, reported as 131 (2006) DLT 557 (SC)=V (2006) SLT 655= (2006) 6 SCC 207 observed as below: "12. The expression" cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action" means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in "cause of action" [See Rajasthan High Court Advocates Assn. v. Union of India, (2001) 2 SCC 294 ] 13. The expression" cause of action" has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit [See Gurdit Singh v. Munsha Singh, (1977) 1 SCC 791 ]. 14. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit [See Gurdit Singh v. Munsha Singh, (1977) 1 SCC 791 ]. 14. The expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a Court or a Tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in Court from another person (see Blacks Law Dictionary). In Strouds Judicial Dictionary a cause of action is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.) the meaning attributed to the phrase ca use of action in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf [See Navin chandra N. Majithia v. State of Maharashtra, (2000) 7 SCC 640 ]." 11. In the case of Union of India v. Adani Exports Ltd., reported as VII (2001) SLT 612= AIR 2002 SC 126 , the Supreme Court observed as under: "10.....Cause of action as understood in civil proceedings means every fact which, if traversed, would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. It is the bundle of facts which taken with the law applicable to them, gives the plaintiff a right to relief against the defendant. Each and every fact pleaded in the writ petition does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the Courts territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned." . 12. Facts which have no bearing with the lis or dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned." . 12. Thus it is apparent from the aforesaid judicial pronouncements that while examining the expression" cause of action", the Court ought to look at the factual situation that gives rise to an enforceable claim. Taking into consideration the entire averments contained in the plaint, which when read collectively, constitute a bundle of facts that form the basis of institution of the present suit by the plaintiff, it cannot be stated that no part of the cause of action has arisen in favour of the plaintiff within the territorial jurisdiction of this Court, so as to reject the plaint and/or return the same for being filed before the appropriate Court having territorial jurisdiction. 13. The facts pleaded by the plaintiff in the plaint to the effect that the plaintiff carries on extensive business in the territorial jurisdiction of this Court through sale and/ or advertisement of its goods, which business is likely to be adversely affected by the purported groundless threats issued by the defendant to the plaintiffs group companies forms sufficient cause of action for instituting the suit in this Court. The plaintiff is the dominus litis, that is, master of, or having dominion over the case. He has a right to have his Forum conveniens, by approaching a Court, where part of the cause of action arises. He is the person who has carriage and control of an action. In case of conflict of jurisdiction, the choice ought to lie with the plaintiff to choose the Forum best suited to him unless there be a rule of law excluding access to a Forum of plaintiffs choice or permitting recourse to a Forum will be opposed to public policy or will be an abuse of the process of law. Reference in this regard may be made to the judgments of the Supreme Court in the cases of Dhannalal v. Kalawati Bai and Ors., reported in IV (2002) SLT 250=JT 2002 (5) SC 53, and Nasiruddin v. State Transport Appellate Tribunal, reported in AIR 1976 SC 331 . 14. Reference in this regard may be made to the judgments of the Supreme Court in the cases of Dhannalal v. Kalawati Bai and Ors., reported in IV (2002) SLT 250=JT 2002 (5) SC 53, and Nasiruddin v. State Transport Appellate Tribunal, reported in AIR 1976 SC 331 . 14. Reliance placed by the Counsel for the defendant on the judgment in the case of Girdhari Lal Gllpta (supra) is misplaced for the reason that in the aforesaid case, the Court was examining as to whether the High Court had jurisdiction to entertain applications made by the respondents therein under Section 51-A of the Designs Act, 1911 or not. While examining the aforesaid provision under the Designs Act and its effect on the jurisdictional aspect, the Full Bench made it clear that it had not considered the question whether the High Court acting under Section 51A of the Designs Act, being a Court of civil jurisdiction, the procedure laid down in the Code of Civil Procedure would be applicable to the proceedings before it. Rather, it was clarified that the said judgment was rendered so as to determine the question of jurisdiction of the High Court independently of the applicability of the provisions of the CPC. 15. In view of the facts and circumstances of the case and the position of law as discussed above, the application filed by the defendant is rejected. Application rejected.