JUDGMENT A.S. Bopanna, J.— This appeal is filed Under Order 43 Rule 1(R) of CPC against the order on I.A. No. 1 dated 15/12/06 passed in O.S. No. 7198/06 on the file of XXII Addl. City Civil Judge, Bangalore, Allowing I.A. 1 Filed Under Ordered XXXIX Rule 1 and 2 of CPC seeking for temporary injunction. These appeals having been reserved for orders on 11.11.2009. Coming on for pronouncement this day, the court pronounced the following: Judgment Facts Relating to M.F.A. No. 4954/2006 The appellants herein are the defendants in O.S. No. 17779/2005. The said suit is filed by the plaintiff seeking for judgment and decree to restrain the defendants from infringing the well established trade mark "PRESTIGE" by using the offending trade mark "PRESTEEGE" to deceptively take advantage of the reputation of the plaintiff. In the said suit, an application under Order 39 Rules 1 and 2 of CPC was filed seeking temporary injunction. Since ad-interim injunction was granted, the defendants also filed an application under Order 39 Rule 4 of CPC praying to vacate the injunction. The said applications were considered by the trial Court and disposed of by its order dated 20.04.2006. By the said order, the ad-interim temporary injunction granted was confirmed and the application of the defendants was dismissed. The defendants are therefore before this Court against the order dated 20.04.2006. 2. The brief facts are, the plaintiff is before the trial Court contending that they are engaged in construction and building business for the last two decades and they are reputed builders of South India having built innumerable shopping complexes and residential apartments in and around the City of Bangalore. The plaintiff contends that they are identified with their trade mark "PRESTIGE, PRESTIGE GROUP and PRESTIGE ESTATES". They contend that they commenced their business by partnership deed dated 01.04.1986. Due to their high quality construction, intrinsic quality, salesmanship, advertisement and the promptness in executing the projects, they claim that they have built vast reputation and goodwill in the market. It is further contended that the word "PRESTIGE"" in the construction business is symbolic of superior construction quality coupled with modern amenities at competitive prices. 3. The plaintiffs have also stated with regard to the several projects undertaken by them and the awards won by them for excellent construction and architecture. It is further contended that the word "PRESTIGE"" in the construction business is symbolic of superior construction quality coupled with modern amenities at competitive prices. 3. The plaintiffs have also stated with regard to the several projects undertaken by them and the awards won by them for excellent construction and architecture. It is the contention of the plaintiff that in addition to acquiring valuable common law rights, they have also sought for statutory protection in respect of their trade mark and trading style and as such have filed applications for registration of their service marks before the Trade Mark Registry. The plaintiff has also obtained registration under the Copyright Act, 1957 in respect of the original artistic work, design and getup of their Prestige Group label vide registration No. A-51400/91. The turnover of their business has also been referred to. Hence, the plaintiffs contend that the trade marks/service marks and the trade style stated above has therefore become their property and no other person can use a trade mark/service mark which is deceptively similar to the plaintiffs trade mark and if adapted would amount to passing off the valuable common law rights of the plaintiff. 4. In this background, the plaintiffs contend that during the third week of April 2005, the defendants got published an advertisement in Malayalam Manorama dated 27-04-2005 and the plaintiffs received inquiries from an existing customer about the further details advertised regarding a project of Prestige. The plaintiff therefore contends that the defendants have slavishly and fraudulently copied the trade mark and style by deliberately misspelling the same as "PRESTEEGE". Hence, it is contended that the use of identical name with phonetic similarity in relation to the same description of the services as that of the plaintiff is bound to result in confusion and deception in the minds of unwary purchasers. The launch of the website www.presteege.com by the defendants is also referred to by which publicity to marketing of services is rendered by them. Thus, alleging that the defendants are passing of their services in the said manner had instituted the suit. 5. The defendants on entering appearance have filed their detailed written statement. At the outset, the defendants have contended that the suit is not maintainable. Thus, alleging that the defendants are passing of their services in the said manner had instituted the suit. 5. The defendants on entering appearance have filed their detailed written statement. At the outset, the defendants have contended that the suit is not maintainable. In this regard, it is contended that in a passing off action the suit would have to be instituted within the jurisdiction where the person committing passing off works for gain. It is contended that the defendants do not have any business nor have they advertised in Bangalore since their business is exclusively in the State of Kerala. Even on merits, it is contended that the defendants is a prior user of the mark and the question of passing off does not arise. The defendants have contended that the first defendant's sister concern has a registered trade mark under Class 24 of the Act which was registered on 27.02.1982 which establishes that the defendants known as 'PRESTEEGE GROUP' in Kerala has been in business for more than two decades. The defendants contended that they have also made an application to the trade mark registry in respect of registration of its mark in Class 37 for building construction and related business. The defendants have also contended that their mark has been associated with the famous textile company Bombay Dying since 1976. The defendants have further pleaded acquiescence, waiver and estoppel. Accordingly, the suit of plaintiff was opposed by the defendants. FACTS RELATING TO MFA No. 13696/2006 6. The plaintiff is said to be a homeopathy doctor who is specialised in holistic medicine like homeopathy, yoga, acupuncture etc. He has set up a holistic medical centre under the name and style 'SOUKYA BANGALORE HOLISTIC MEDICAL CENTRE/ SOUKYA Dr. MATHAI'S HOLISTIC HEALTH CENTRE' at Richmond Road and SOUKYA Dr. MATHAI'S INTERNATIONAL HOLISTIC HEALTH CENTRE at white field where holistic medicine is offered to people. It is claimed to be hugely popular and lot of people both in India and abroad take treatment at the holistic centre. During the year 2000 the plaintiff is said to have coined the word 'SOUKYA' and registered the same in Class 16 with the registration No. 904711 effective from 21.2.2000. The plaintiff claims exclusive right to use the word 'SOUKYA' on printed matters, photographs, stationery etc. During the year 2000 the plaintiff is said to have coined the word 'SOUKYA' and registered the same in Class 16 with the registration No. 904711 effective from 21.2.2000. The plaintiff claims exclusive right to use the word 'SOUKYA' on printed matters, photographs, stationery etc. The plaintiff has also applied for registration of the mark in class 5 in respect of pharmaceutical dietic substances etc. Registration in class 42 has also been applied for. The plaintiff is therefore using the mark 'SOUKYA' extensively in all their printed matters. The international SPA Association has taken the Managing Director as a member of the Association. The plaintiff has got the art work in respect of the logo 'SOUKYA'. The exhibition conducted at London and the participation of the plaintiff in the said exhibition and also the subsequent summit organised at Bangalore etc are referred to indicate the popularity of the plaintiff. Hence it is contended that the plaintiff is using the mark 'SOUKYA' extensively and the people are aware of the same and have associated with the plaintiff. 7. The grievance of the plaintiff is that during August 2005. they were shocked to see an article in the daily newspaper 'Deccan Herald' dated 26.8.2005 wherein it has been stated that 'SOWKHYA AYURVEDIC CENTRE' has been set up in Kodaikanal and that the same is owned by Mr. George Koshy, the first defendant. The plaintiff on further verification became aware of the fact of the defendant with a malafide intention of usurping the trade name and the goodwill both in India and abroad has started using the name 'SOWKHYA'. The plaintiff has thereafter found the brochures which have been printed by the defendant. The plaintiff thereafter got issued a legal notice to which the defendants had replied stating that 'SOWKHYA' is descriptive. The plaintiffs therefore contended that the defendants have infringed the trade mark by making minute change in spelling. Hence it is contended that the entire action of the defendant in trying to impinge upon and usurp the trade name/mark of the plaintiff and trying to pass off his goods/services as that of the plaintiff is totally fraudulent and ought to be deprecated. The cause of action mentioned is the date (26.8.2005) when the article appeared in the daily news paper 'Deccan Herald'. 8. The cause of action mentioned is the date (26.8.2005) when the article appeared in the daily news paper 'Deccan Herald'. 8. The defendants have filed their written statement contending that the word 'SOUKYA' is common to the trade and it completely open to the trade to use. Hence it is contended that no passing off could lie on the defendants since the plaintiff cannot claim exclusive right to use the said word. The defendants have been using the word with completely different spelling, font, getup etc and as such there is no similarity. The defendants have also referred to the Illustration of 'Pepsi cola' as against 'Coca cola' and 'Skin dew' as against 'Skin deep' etc. The defendant has also referred to the plaintiff being aware of several other parties who are using the word 'SOUKYA' or 'SOWKHYA' and has furnished a list in this regard. The defendant has sought for dismissal of the suit for non-joinder of the necessary party since SOWKHYA WAY-2 HEALTH PVT. LTD., has not. been impleaded as a party. Detailed reference is made to the manner in which the mark SOWKHYA WAY-2 HEALTH was invented, coined and adopted in 2005. The defendant has also pleaded with regard to inordinate delay, laches and acquiescence since the suit has been instituted after more than a year from the date of the reply issued by the defendants on 12.9.2005. Above all, the defendants have contended that the Court in Bangalore lacks territorial jurisdiction to entertain the present suit as the defendants are not residing or carrying out the business within the jurisdiction of this Court and neither has the cause of action or a part thereof arisen within the jurisdiction. The defendants deny that they have placed any advertisement within the jurisdiction of the Court at Bangalore. The trial Court has however granted injunction by order dated 15.12.2006. The said order is called in question in this appeal. 9. It is on the said contentions, the parties had also put forth their plea relating to the temporary injunction. The trial Court, as noticed, has granted the injunction in favour of the plaintiff in both the suits after considering the rival contentions as against which these appeals arise. Since the question of jurisdiction is raised in both the above appeals, they are heard together and disposed of by this common judgment. 10. Heard Sri. The trial Court, as noticed, has granted the injunction in favour of the plaintiff in both the suits after considering the rival contentions as against which these appeals arise. Since the question of jurisdiction is raised in both the above appeals, they are heard together and disposed of by this common judgment. 10. Heard Sri. Adithya Sondhi, learned Counsel for the appellant in both the appeals, Sri Udaya Holla, learned senior counsel for respondent in MFA No. 13696/2006 and Sri. Harikrishna Holla, learned Counsel for the respondent in MFA No. 4954/2006. Though the learned Counsel were heard exhaustively and they have also relied on several decisions, the contentions and the cited decisions which are relevant would be referred to at the appropriate juncture. 11. Much emphasis was laid on the jurisdiction of the Court at Bangalore to entertain a suit of the present nature. In this regard, the undisputed position is that the appellants in MFA No. 4954/2006 are carrying on their business at Kerala, while the appellants in MFA No. 13696/2006 are carrying on business at Tamil Nadu, outside the jurisdiction of the Civil Court at Bangalore while the plaintiff-respondent in both the cases are carrying on their respective business at Bangalore. The nature of business of the appellant as well as the respondents in MFA No. 4954/2006 is the one described in Class -37 and that of the parties in MFA No. 13696/2006 is the one described in class-42 of the classification of goods and services contained in Fourth Schedule to the Trade Mark Rules, 2002. Further the undisputed fact is that the trade mark relating to that Class was not registered as on the date of the suit, though application had been made. The registration in favour of the respective respondent was available in Class-16, which is not concerned with the business of the appellant. But subsequently during the pendency of this appeal, the trade mark in respect of Class-37 and Class-42 respectively, was also registered and in addition, the respondent in MFA No. 13696/06 had also secured registration in Class-5. 12. Hence, the questions that would arise for consideration are: (i) Whether in such circumstance, the provision contained if Sub-section (2) to Section 134 of the Trade Mark Act, 1999 (for short the 'Act') could be invoked to maintain a suit at the plaintiffs place of business? 12. Hence, the questions that would arise for consideration are: (i) Whether in such circumstance, the provision contained if Sub-section (2) to Section 134 of the Trade Mark Act, 1999 (for short the 'Act') could be invoked to maintain a suit at the plaintiffs place of business? (ii) Whether the existing registration in a different Class would enure to the benefit of the plaintiff for maintaining such a suit under Section 134(2) of the Act? (iii) Whether the subsequent registration of the trade mark for the same Class to which the dispute relates, during the pendency of the suit though would date back, be relatable to the cause of action and conferment of jurisdiction? (iv) If the above are answered in the negative and ultimately if the suit is considered as one for passing off and not for infringement, whether part of the cause of action can be held to have arisen within the jurisdiction of the Court at Bangalore in view of the advertisement and the accessibility on the website? Therefore, on consideration of the above aspects if it is found that the suit is maintainable in either case, then only the merits of the other contentions would arise so as to consider whether there is infringement or passing off as alleged and the correctness or otherwise of the injunction granted on that score. 13. In that light, if the matter is to be examined, the law is well settled that at the outset, the pleading put forth would have to be noticed not only to determine the merits but also the cause of action as well as the jurisdiction. In the instant case, it is true that the suit is instituted as one under Section 134(2) of the Act. But the entire pleading in the plaint relating to MFA No. 4954/06 does not refer to the registration of the trade mark of the plaintiff even in respect of a different class but all that has been indicated is that an application has been made seeking registration of the trade mark, but the relief sought is one against infringement. But the entire pleading in the plaint relating to MFA No. 4954/06 does not refer to the registration of the trade mark of the plaintiff even in respect of a different class but all that has been indicated is that an application has been made seeking registration of the trade mark, but the relief sought is one against infringement. In the plaint relating to MFA No. 13696/06, though reference is made to registration under Class-16 and also about the brochures printed by the defendants, the ultimate plea is that defendants are trying to impinge upon and usurp the trade name/mark of the plaintiff and is trying to pass off the goods/services as that of the plaintiff. It is no doubt true that in the course of the arguments before this Court, it has been contended that the trade mark of the plaintiff relating to MFA No. 4954/06 was registered in Class-16 during December 2005, prior to the date of filing of the suit i.e., 13.12.2005 and the registration in respect of Class-37, an application for which was filed earlier on 22.2.2005 has been registered subsequently on 16.10.2006 and in that context, it is contended that the registration would date back to date of the application i.e., 22.2.2005 and therefore; the suit filed on 13.12.2005 would be one for infringement. The said appellant has also secured registration in Class-37 during pendency of this appeal, but with effect from 22.09.2005. In so far as the plaintiff relating to MFA No. 13696/06, the trade mark in Class-16 was registered on 21.02.2000, prior to the date of filing of the suit i.e., 10.08.2006 and the registration in respect of Class-42 which was filed earlier on 06.02.2006 has been registered subsequently on 22.08.2008 and in respect of Class-5 which was filed on 21.2.2000 was registered on 29.11.2006 and it is in that context contended that it would date back to the date of the application and as such would be a suit for infringement in respect; of relevant class. As noticed, when cause of action and jurisdiction is considered the pleadings would have to be construed strictly for the said purpose and as already indicated, the averments in the plaint in the case relating to MFA No. 4954/06 is in the nature of one for passing off since except for the provision mentioned and the prayer portion regarding infringement, no details with regard to registration is available. The plaint relating to MFA No. 13696/06 is in the nature of composite suit only because there is some pleading relating 10 Class-16. 14. However, the other situations also need consideration in view of the alternate circumstance under which the maintainability would arise. In that context, the aspect which also requires to be considered is as to whether the subsequent registration would bring the suit within the framework of Section 134(2) enabling it to be maintainable. It is no doubt true as per Section 23 of the Act. the registration would relate back to the date of application though registered subsequently. In this regard, the learned Counsel for the plaintiff/respondent has relied on the decision of the High Court of Madras in the case of P.L. Anwar Basha Vs. M. Natarajan, AIR 1980 Mad 56 to contend that it would relate back and suit would be for infringement. However, what is to be considered is the subsequent decision by the Hon'ble Division Bench of the High Court of Madras in the case of Premier Distelleries Pvt. Ltd. v. Sushi Distilleries 2001 PTC 907 MAD (DB) relied on by the learned Counsel for the appellant, wherein the aspect of jurisdiction in relation to cause of action was examined exhaustively. Paragraphs 10 and 11 read as hereunder: 10. The argument advanced that registration if granted would date back to the date of application and that the plaintiff would have the right to seek amendment of the plaint to seek relief on the ground of infringement as well, is wholly irrelevant so far as the cause of action for bringing a suit for passing off is concerned. The argument advanced that registration if granted would date back to the date of application and that the plaintiff would have the right to seek amendment of the plaint to seek relief on the ground of infringement as well, is wholly irrelevant so far as the cause of action for bringing a suit for passing off is concerned. While it may be convenient to the plaintiff to institute a suit in a Court where he may later on be able to bring a suit for infringement of the trade mark, that convenience of the plaintiff is in no way relevant for deciding as to whether a cause of action for filling a suit for passing off can be said to have arisen in a place where, the deceit alleged to have been practised by the defendant had in fact, not been practised within the jurisdiction of the Court in which the suit is brought. 11. The cause of action is not to be confused with convenience. Many things may be convenient to plaintiff, but they do not become part bundle of facts requiring to be established for obtaining the decree in the suit. The argument advanced for the plaintiff is also far fetched. It seeks to presume that the plaintiff in a suit for passing of who has applied for registration of the mark will pursue the effort to have the trade mark registered; that such effort will be successful; that such an event will occur when the suit is still pending; that the suit will continue to pend till the registration is effected; that plaintiff would be seeking an amendment to add a prayer with regard to infringement and that the plaintiff would be ultimately in a position to establish infringement. The cause of action is something which has occurred and which gives a right to take action. The cause must precede the action and not follow it. The events contemplated by the plaintiff as being capable of occurring at a point of time in the future, merely on account of those possibilities, will not constitute a cause of action for relief for securing which, those events are not materially relevant. 15. Reference is made to the said decision by the Hon'ble Supreme Court in the case of Dhodha House Vs. 15. Reference is made to the said decision by the Hon'ble Supreme Court in the case of Dhodha House Vs. S.K. Maingi, AIR 2006 SC 730 on which strong reliance is placed by the learned Counsel for the appellant and it would indicate that mere filing of the application would not be sufficient for the said purpose. In the said decision, the Hon'ble Supreme Court has in feet expressed its concurrence with the view taken in Premier Distilleries case referred supra. Further the Hon'ble Supreme Court in the said decision has considered in detail with regard to the cause of action in maintaining a suit for infringement of the trade mark though in the said case the issue related to the jurisdiction in view of Section 62(2) of the Copy Rights Act, 1957. In that context, the Hon'ble Supreme Court is of the view that cause of action will arise only when a registered trade mark is used and not when an application is filed for registration of the trade mark. The said decision is rendered looking into the provision contained in the said enactment and also Section 20 of the Civil Procedure Code. The learned Counsel for the respondent no doubt sought to distinguish the same by contending that the view taken therein would not be applicable to the present facts since according to the learned Counsel the decision was rendered in the context of considering the provision in the Trade Marks Act, 1958 while in the new Act of 1999 Section 134(2) would create jurisdiction. I am unable to accept the said contention since the principle on which the Hon'ble Supreme Court has come to such a conclusion would be applicable in the present circumstance also. Firstly the Hon'ble Supreme Court has in fact taken note of the provision contained in Section 134(2) of the new Act as well but has not analysed it further since what was being considered therein is the Copy Right Act, but the similarity has been noticed. Further even under the old Act, the provision contained under Section 23 regarding registration relating back to the date of application was available, yet the Hon'ble Supreme Court has stated that the cause of action will arise only when the registered trade mark is used. Further the decision in the case of Exphar SA and Another Vs. Further even under the old Act, the provision contained under Section 23 regarding registration relating back to the date of application was available, yet the Hon'ble Supreme Court has stated that the cause of action will arise only when the registered trade mark is used. Further the decision in the case of Exphar SA and Another Vs. Eupharma Laboratories Ltd. and Another, AIR 2004 SC 1682 relied on by the learned senior counsel for the respondent also would not be of assistance. In the said case, apart from considering exclusively the infringement of copy right under Section 62(2) had in the facts evolving therein referred to the 'cease and desist' notice issued by the defendant and the place of receipt of the same to determine the jurisdiction. 16. Further, in order to understand the implication, it would also be necessary to refer to Section 2(w) which defines the 'registered trade mark' to mean a trade mark which is actually on the register and remaining in force. In that context, a reference to Sub-section (1) of Section 27 indicates that it prohibits a person from instituting proceedings to prevent the infringement of an unregistered trade mark: but Sub-section (2) however permits action for passing off. Hence if it is an action in respect of a trade mark which is yet to be registered, the place of suing will be in terms of Section 134(1)(c) of the Act read with Section 20 of the CPC. Only if the trade mark is registered and is actually on the register and a right is conferred as provided under Section 28 of the Act and if such trade mark is infringed the cause of action to institute a suit exclusively for infringement would arise. On such day, the forum as provided under Section 134(2) of the Act would also be available in addition to the forum available as provided under Section 20 of CPC. If that be so, the subsequent registration of the trade mark though may relate back in terms of Section 23 of the Act and would be valid for all other purposes, in so far as the cause of action and jurisdiction, the same cannot be made use of in terms of relation back since as held in Premier Distilleries case the cause must precede the action and not follow it. In fact the Hon'ble Supreme Court in the case of K. Narayanan and Another Vs. S. Murali, AIR 2008 SC 3216 has also held that there is no right in the person to assert infringement before registration is granted. This is clear from the fact that to maintain a suit for infringement, the cause of action would arise only if the trade mark is registered and the use of such 'registered trade mark' is infringed. Hence as on the date of the filing of the suit, if such infringement does not take place, not only the cause of action would not have arisen to file a suit for infringement, but in such situation when the suit in itself is not for infringement, the benefit of filing such a suit at a place where the plaintiff is carrying on the business would not be available as contemplated under Section 134(2) of the Act. 17. The learned senior counsel further referred to the decisions in the case of Variety Emporium Vs. V.R.M. Mohd. Ibrahim Naina, AIR 1985 SC 207 ; Narayanappa Divakarappa v. Gopala Rao Srinivasa Bhat 1979 (2) Kar.L.J 8 and Lekh Raj v. Munilal and Ors. (2001) 2 SCC 762 to contend that the subsequent events should be taken note of as an aid to ultimately consider the relief. In all the said cases, the issue arose in tenancy proceedings. Though there can be no quarrel with regard to the proposition of law laid down by the said decisions, the said view was taken in proceedings where the noticing of the subsequent events would not have altered the situation with regard to jurisdiction and in that circumstance, in a competent proceedings the subsequent events could of course be taken into consideration. On the other hand, in the instant cases, the discussion made above would indicate that the consideration is with regard to the question of jurisdiction keeping in view the forum in which it could be instituted in view of the provisions contained in the Act. Therefore, the registration of the trade mark which was subsequently granted though an event which has taken place during the pendency of the proceedings, would have to be looked at from a different stand point which has been discussed above. Hence the said decisions would not be of assistance in the instant case. 18. Therefore, the registration of the trade mark which was subsequently granted though an event which has taken place during the pendency of the proceedings, would have to be looked at from a different stand point which has been discussed above. Hence the said decisions would not be of assistance in the instant case. 18. One more way of looking at the said aspect also would be that even though in the instant case the trade mark application which was filed earlier has been accepted and the registration is granted subsequently and if by noticing Section 23 of the Act, the maintainability of the suit on such relation back is accorded, the same would also lead to an anomalous situation in the context of cause of action and jurisdiction. For example in the case relating to MFA No. 4954/2006, the injunction was granted on 20.04.2006 while the registration in Class 37 which is the relevant class was granted on 16.10.2006. In the case in MFA No. 13896/06, the injunction was granted on 15.12.2006 while the registration in the relevant Class-42 was granted on 22.8.2008. Hence, in both the cases, the injunction was earlier to grant of registration and merely because the application was on 22.5.2005 and 16.2.2006 respectively, if relation back is accorded, it would be as if ratifying an injunction which could not have been granted on the date on which it was done for want of jurisdiction in a suit for passing off and for want of cause of action and jurisdiction in the case of infringement. Hence, if the contention of the respondents herein is accepted, in that context also, it would be contrary to the view expressed in Premier Distilleries and Dhodha House. 19. The next question would be as to whether a suit for infringement of trade mark could be filed in respect of the business falling under a different class while the existing registration is for a different class. In this regard, Section 28 of the Act would provide that the trade mark shall, if valid, give to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods or services in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark. The said provision therefore makes it clear that a person can be considered as a registered proprietor only in respect of the goods or services for which the trade mark is registered and this would clarify that if the goods or services mentioned in a particular class to the schedule is registered such protection would be available only in respect of that class and relief against infringement would be available only in respect of that class. In fact, in a decision in the case of The Indian Hotels Company Ltd. and Anr. Vs. Jiva Institute of Vedic Science and Culture, (2008) 37 PTC 468 (Del) ) rendered by a Hon'ble Division Bench of High Court of Delhi, this aspect has been adverted to and in a situation where the parties had registration in Class -16 and an application had been made in respect of Class-42 but not registered, the view taken was that the protection against infringement would be only against the class in which it is registered. Therefore in the instant case, when the plaintiffs have filed the suit seeking the relief against infringement, the registration of the trade mark in Class-16 cannot enure to the benefit of the plaintiffs in respect of Class-37 and Class-42 respectively which had not been registered as on the date of the suit for the relief of infringement though it could be material against passing off in a Court having jurisdiction. In the case of MFA No. 13696/2008 even though Class-16 is pleaded and allegation of brochure of defendant is made, the ultimate grievance is against the business itself. Hence, even on that count, the benefit of Section 134(2) of the Act would not be available to institute the suit at a place where the plaintiff is carrying on the business. 20. One other aspect of the matter is that even though the plaintiffs respondents have pleaded that their mark is registered under the Copyright Act, the suit in any event is not for infringement of the same since Section 62(2) of that Act has not been invoked. 20. One other aspect of the matter is that even though the plaintiffs respondents have pleaded that their mark is registered under the Copyright Act, the suit in any event is not for infringement of the same since Section 62(2) of that Act has not been invoked. In any event, since they have a registration and the right under the Act if invoked, even then, since the suit under the Act is in the nature of passing off, even in that event, a composite suit is not maintainable as held by the Hon'ble Supreme Court in the case of Dabur India Ltd. Vs. K.R. Industries, AIR 2008 SC 3123 relied on by the learned Counsel for the appellant/defendant. 21. Hence, considering all these aspects, the instant suits would have to be considered as one for passing off and in that context, it would have to be examined as to whether any part of the cause of action had arisen within the jurisdiction of the Court at Bangalore in which the suit is instituted. In this regard, the convention urged is that the website of the defendant is accessible from any place including Bangalore and therefore, the Court at Bangalore would have jurisdiction even if the suit is construed as one for passing off since a part of the cause of action has arisen at Bangalore. The learned Counsel for the plaintiff/respondent has relied on the decision in the case of Casio India Co. Limited Vs. Ashita Tele Systems Pvt. Limited, 106 (2003) DLT 554 ; Yahoo, INC. v. Akash Arora 1999 19 PTC 201 Satyam Infoway Ltd. Vs. Sifynet Solutions Pvt. Ltd., AIR 2004 SC 3540 to contend that in such situations there would be passing off at the place where the website is accessible and as such an order of injunction is to be granted. In the case of CASIO INDIA, the defendant was admittedly selling casio products through the website. The website was accessible from Delhi and as such sale took place and in substance the suit was one seeking restraint on passing off a portal/website as that of the plaintiff therein who was the Principal. That apart, the said decision in any event has been subsequently overruled by a Hon'ble Division Bench of the High Court of Delhi in the case of Banyan Tree Holding (P) Ltd. v. A. Murali Krishna Reddy and Anr. That apart, the said decision in any event has been subsequently overruled by a Hon'ble Division Bench of the High Court of Delhi in the case of Banyan Tree Holding (P) Ltd. v. A. Murali Krishna Reddy and Anr. CS (OS) No. 894/2008 decided on 23-11-2009. In the case of Yahoo Inc the services offered by the plaintiff and defendant therein were identical since both of them provided Internet programs and online information to users in applications like arts, humanities, employment, entertainment etc., and it was accessible from anywhere and could be used everywhere and similarity in domain name would land the user in a different website than the one intended. In the case of Satyam Infoway Ltd., also the issue was relating to the deceptively similar sounding internet domain names and was not in the context of jurisdiction. The said cases therefore at the outset, would indicate that the matter in issue was regarding the domain name and in that context, the entire issue was examined and not in the present context. While doing so, the conclusion was that since there was deceptively similar domain names and the same being accessible from any point could also be made use of and as such the relative point of jurisdiction was also considered. 22. However, with regard to a situation on hand the learned Counsel for the defendant/appellant has placed reliance on the judgment of the High Court of Delhi in the case of Pfizer Enterprises and Anr. Vs. Dr. H.R. Manchanda and Anr., (2009) 39 PTC 114 (Del) to contend that the mere existence of a website does not amount to advertisement in a different jurisdiction and as such the suit would not be maintainable as that will not give rise to part of cause of action. In fact, the learned Counsel for the plaintiff/respondent has also relied on the very same judgment to contend that when the website is interactive, the same would provide cause of action and jurisdiction at that place. In this regard, the learned Counsel for plaintiff/respondent contends that the homepage of the defendants website would refer to the enquiry form and also there is provision for online booking and therefore, the same is interactive in as much as the customers are likely to be misled and would also make their bookings on line. In this regard, the learned Counsel for plaintiff/respondent contends that the homepage of the defendants website would refer to the enquiry form and also there is provision for online booking and therefore, the same is interactive in as much as the customers are likely to be misled and would also make their bookings on line. In this regard, in the case of Pfizer Enterprises, it has been held that the defendants web activities should be directed to the concerned geographical locale. In the said case, reference was made to the case of India TV 2007 (35) PTC 177 wherein a similar view was taken referring to the case in Cybersell Inc v. Cybersell INC and Ors. decided by US Court of appeals. In the said case, the question was whether the alleged infringing use of a service mark on a home page on WWW suffices for personal jurisdiction in the state where the holder of the mark has its principal place of business. In that case, Cybersell was alleged to have infringed the mark of Cybersell Arizone which advertised for commercial services ever the Internet. It was observed inter alia, that no Court has ever held that an Internet advertisement alone is sufficient to subject the advertiser to jurisdiction in the plaintiffs home state. It was found that Cybersell, Florida conducted no commercial activity over the Internet in Arizona and did nothing to encourage people in Arizona to access its site and there is no evidence that any part of its business was sought to be achieved in Arizona. The interactivity of the web page was limited to receiving the browsers name and expression of interest - signing up for the service was not an option nor did anyone in Arizona do so. It was held that as Cybersell, Florida engaged in no commercial activity and had no contacts via the internet or otherwise in Arizona, it: lacked sufficient minimum contacts with Arizona for personal jurisdiction to be asserted over it over there. In the instant case, first and foremost, there is no pleading to that effect. Further the construction activity of the defendant relating to MFA No. 4954/2006 is exclusively in Kerala State. In the instant case, first and foremost, there is no pleading to that effect. Further the construction activity of the defendant relating to MFA No. 4954/2006 is exclusively in Kerala State. Though online booking is indicated, the sale would not take place in Bangalore so as to constitute a part of the cause of action in terms of passing off since even if the defendants were to pass of their property riding on the reputation of the plaintiff as alleged, the same would take place only in Kerala State. Similarly in the case of defendant relating to MFA No. 13696/2006 the activity of providing the services is exclusively in Tamil Nadu. The said test of concluding a commercial transaction should be shown, to establish the nature of activity indulged in by the defendants by the use of the website as noticed by me above. This view of mine is also fortified by the view expressed by the Hon'ble Division Bench of High Court of Delhi in the case of Banyan Tree Holding (P) Ltd. referred to supra. Therefore in both the cases the Court at Bangalore would lack jurisdiction. 23. In the case of Sterling's MAC Fast Food Vs. MC Donald's Corporation, Rep. by its Pah Vikrant Rana and Another, ILR (2004) KAR 2893 this Court has held that no temporary injunction can be granted if the suit on the face of it is not maintainable. Therefore, in the instant case, the contentions urged on the aspect of deceptive similarity and other aspects on merits would not arise since the discussion made above would indicate that the suit is not maintainable for want of territorial jurisdiction and as such, in any event, the injunction cannot be granted. Therefore, the trial Court was not justified. 24. In the result, the following; ORDER (i) The appeals in MFA No. 4954/06 and MFA No. 13696/06 are allowed. (ii) The Order dated 20.4.2006 in O.S. No. 17779/05 and the order dated 15.12.2006 in O.S. No. 7198/2006 are set aside and the respective application under Order 39 Rule 1 and 2 CPC stand dismissed. (iii) All the parties to bear their respective costs.