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2011 DIGILAW 988 (PNJ)

Sachdeva & Sons Industries v. Bhupinder Jain

2011-04-04

RAJESH BINDAL

body2011
JUDGMENT RAJESH BINDAL J. - Challenge in the present appeal is to the order dated 29.4.2008, passed by the learned court below, whereby the application filed by the respondent under Order VII Rule 11 of the Code of Civil Procedure was allowed and it was ordered that the plaint in original be returned to the plaintiff-appellant. 2. Briefly, the facts are that the appellant filed a suit for permanent injunction restraining the respondent from infringement of trade mark, copy right, rendition of accounts etc. against the respondent at Amritsar with the contention that the appellant is a duly incorporated company engaged in the business of rice export. Since 1968, it had been using trade mark “Pari”, which is duly registered. In addition to that, the appellant is also registered proprietor of other trade marks, namely, “Jal Pari”, “Flying Pari”, “Farishta” and “Sachdeva's Pari”. This registration is not limited in India, rather, the appellant got the trade mark “Pari” registered in other countries as well, as is stated in the plaint filed by it. The appellant got the copy rights for the artistic work in distinct design and device of “Pari” under the Copyright Act, 1957 (for short, `the 1957 Act'). 3. The suit was filed with the allegations that the respondent was guilty of violating and infringing the statutory right of the appellant under the Trade Marks Act, 1999 (for short, `the 1999 Act') and is also passing off their goods as that of the appellant. 4. The respondent appeared and filed application under Order VII Rule 11 CPC for rejection of the plaint on the plea that the courts at Amritsar did not have the jurisdiction to entertain the suit. The application having been allowed, the appellant is before this court. 5. Learned counsel for the appellant submitted that the learned court below has committed patent error in referring to the judgments considering the provisions of Trade and Merchandise Marks Act, 1958 (for short, `the 1958 Act'), which stood repealed, where the provisions were different as compared to the provisions of the 1999 Act. 5. Learned counsel for the appellant submitted that the learned court below has committed patent error in referring to the judgments considering the provisions of Trade and Merchandise Marks Act, 1958 (for short, `the 1958 Act'), which stood repealed, where the provisions were different as compared to the provisions of the 1999 Act. Learned counsel referred to the provisions of 1958 Act and also the 1999 Act claiming that in terms of the 1999 Act, additionally jurisdiction had been conferred on the district courts within the local limits of whose jurisdiction at the time of institution of the suit or other proceedings, the person instituting the suit or proceedings actually and voluntarily resides or carries on business. 6. The submission was that the aforesaid provision, as contained in Section 134(2) of the 1999 Act was not there under the 1958 Act. It is in terms of the provisions under the 1958 Act that in the judgments, referred to by the respondent, the opinion expressed was that the courts where the plaintiff carries on the business have no jurisdiction, whereas in terms of Section 134(2) of the 1999 Act, the courts at Amritsar have jurisdiction to entertain and decide the dispute considering the fact that undisputedly the appellant is carrying on its business at Amritsar. 7. In the present case, the suit was filed on 11.12.2003, after the 1999 Act had come into force. He further referred to the provisions of Section 62 of the 1957 Act stating therein that the same is also identically worded providing for jurisdiction to the court where the plaintiff is residing or carrying on his business. If the aforesaid provisions are considered, it cannot be opined that the courts at Amritsar did not have the jurisdiction to entertain the dispute on the ground on which the plaint has been returned while accepting the application filed by the respondent for rejection of the plaint. In support of his submissions, reliance was placed upon M/s Dhodha House v. S.K. Maingi, 2006(1) RCR (Civil) 175; Wipro Limited and another v. Oushadha Chandrika Ayurvedic India (P) Ltd. and others, 2008(4) RCR (Civil) 669 and Puja Mechanical Works and another v. M/s Pooja Machines (P) Ltd., 2009(1) RCR (Civil) 372. In support of his submissions, reliance was placed upon M/s Dhodha House v. S.K. Maingi, 2006(1) RCR (Civil) 175; Wipro Limited and another v. Oushadha Chandrika Ayurvedic India (P) Ltd. and others, 2008(4) RCR (Civil) 669 and Puja Mechanical Works and another v. M/s Pooja Machines (P) Ltd., 2009(1) RCR (Civil) 372. On the other hand, learned counsel for the respondent was not able to dispute the fact that under both the Acts, the courts where the plaintiff resides or carries on the business have the jurisdiction to entertain and decide the suit pertaining to infringement of rights under the 1957 Act and the 1999 Act. However, he submitted that in the plaint multiple reliefs had been claimed such as infringement of rights of trade mark and copy rights, rendition of accounts, passing off, damages etc. A composite suit for all the reliefs was not maintainable. The provisions of the 1957 Act and the 1999 Act do not provide that the plaintiff therein could claim additional reliefs which are not provided for thereunder and for that purpose, the provisions of Code of Civil Procedure have to be considered. In terms of that, the suit can be filed only at a place where the defendant resides or carries on the business. He further submitted that the respondent had already filed a suit against the appellant at Delhi, which was pending when the appellant had filed the suit at Amritsar. Even on that account, the subsequent suit was not maintainable. Reliance was placed upon Dabur India Limited v. K.R. Industries, 2006 (33) PTC 107 (Del.); Dabur India Ltd. v. K.R. Industries, 2008(37) PTC 332 (SC); M/s Dhodha House's case (supra) and Raj Agro Mills Limited v. Shree Gopal Vanaspati Limited, 2010(42) PTC 556 (P&H). 8. Heard learned counsel for the parties. The provisions, which are relevant for dealing with the controversy are extracted below: Section 62 of the Copyright Act, 1957 “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. 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.” 10. Section 105 of the Trade and Merchandise Marks Act, 1958 “105. Suit for infringement, etc. to be instituted before District Court.- 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. Section 134 of the Trade Marks Act, 1999 “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 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, at the time of the institution of the suit or other proceeding, the person instituting the suit or 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.” Order VII Rule 11 of the Code of Civil Procedure 11. Rejection of plaint.-The plaint shall be rejected in the following cases:-Provided that the time fixed by the court for the (a) where it does not disclose a cause of action; (b) where the relief claimed is under-valued, and the plaintiff, on being required by the court to so correct the valuation within a time to be fixed by the Court, fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, an the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so; (d) where the suit appears from the statement in the plaint to be barred by any law; (e) where it is not filed in duplicate; (f) where the plaintiff fails to comply with the provisions of rule 9 [Providing that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.]” 11. A perusal of the plaint filed by the appellant before the learned court below shows that the relief prayed for therein was for restraining the respondent from using the trade mark “Lal Pari” and passing off respondent's goods and business as appellant's goods and business. A perusal of the plaint filed by the appellant before the learned court below shows that the relief prayed for therein was for restraining the respondent from using the trade mark “Lal Pari” and passing off respondent's goods and business as appellant's goods and business. Further prayer was for delivery of all the finished and un-finished goods bearing the trade mark “Lal Pari” and label design infringing the copy rights of the appellant along with packing material, cartoons, blocks, dyes or any other incriminating material to the appellant. Further prayer for rendition of accounts for the profits earned out of the illegal trade activities was also made. 12. In the application filed by the respondent under Order VII Rule 11 CPC, prayer was made for rejection of the plaint on the ground that the courts at Amritsar do not have the territorial jurisdiction to entertain the dispute. For the purpose, reliance was sought to be placed on Section 20 CPC. 13. A perusal of Section 134(2) of the 1999 Act and 62 of the 1957 Act provide that notwithstanding anything contained in CPC, suit or other proceedings relating to infringement of registered trade mark or copy rights or any other right under the aforesaid two enactments could be instituted in the district court having jurisdiction, which includes 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. 14. In the present case, it is not in dispute that the appellant is carrying on its business at Amritsar. Accordingly, in terms of the provisions of the aforesaid two enactments under which the appellant had initiated action against the respondents, the courts at Amritsar have the jurisdiction to entertain the lis between the parties. 15. The judgments, which have been referred to and relied upon by the learned court below while passing the impugned order were in fact considering the provisions of the 1958 Act, where under Section 105, additionally jurisdiction had not been provided to a court where the plaintiff was residing or carrying on the business. 15. The judgments, which have been referred to and relied upon by the learned court below while passing the impugned order were in fact considering the provisions of the 1958 Act, where under Section 105, additionally jurisdiction had not been provided to a court where the plaintiff was residing or carrying on the business. Even in M/s Dhodha House's case (supra), Hon'ble the Supreme Court specifically noticed that “we are not concerned in this case with maintainability of a composite suit both under the 1957 Act and the 1958 Act. Indisputably, if such situation arises, the same would be permissible; but the same may not be relevant for the purpose of determining the question of forum where such suit can be instituted.” For any other argument raised by the respondent before the learned court below, which though was not part of his pleadings in the application under Order VII Rule 11 CPC, suffice it to say that the same does not fall in any of the clauses of Order VII Rule 11 CPC on account of which the plaint could be rejected at the threshold out rightly. 16. For the reasons mentioned above, the impugned order passed by the learned court below is set aside. The court may now proceed the suit filed by the appellant. The appeal stands disposed of in the above terms. Petition Allowed.