Judgment 1. The present application has been filed by the applicant/defendant in the suit in C.S.No.426 of 2013 under Order XIV Rule 8 of O.S. Rules read with Order VII Rule 11 C.P.C. to reject the plaint filed by the respondent/plaintiff stating that there is no cause of action for filing the suit and this Court has no jurisdiction to adjudge the present suit. 2. For the sake of convenience, the parties will be referred to as per their ranking in the civil suit. 3. The plaintiff has filed the suit in C.S.No.426 of 2013 as against the defendant for the following reliefs:- (i) For a permanent injunction restraining the defendant, their men, agents or any person claiming through them from in any manner infringing the plaintiff's trade mark "OLAMIN" by manufacturing, marketing, distributing, offering or advertising for sale the defendant's product in the name and style of "OLMIN" or any other deceptively similar name. (ii) For a permanent injunction restraining the defendant, their men, agents or any person claiming through them from in any manner manufacturing, marketing, distributing, offering or advertising for sale their product "OLMIN" or similar sounding names in the course of their business and pass off their products using the trademark "OLAMIN" or with additions as and for the goods of the plaintiff or enable others to pass off. (iii) For a mandatory injunction directing the defendant to surrender all the infringing products, packing materials, labels, etc., in the market to the plaintiff for destroying. and (iv) Award costs. 4. It is the case of the plaintiff that they are engaged in the manufacture of medicinal and pharmaceutical products since 1973. The defendant company, which is trading in the same field as that of the plaintiff, with a view to capitalize the reputation and goodwill of the plaintiff's mark, copied and adopted the infringing mark OLMIN that is similar to the plaintiff's registered OLAMIN mark. During May 2011, the plaintiff's marketing agents informed that the defendant is also releasing their goods being the very same pharmaceutical preparations under the very same trade mark "OLMIN". Hence, immediately, the plaintiff caused an extensive search in the market and was shocked to find that the defendant had clandestinely mixed their product by adopting the plaintiff's trade mark "OLAMIN" in the market by lifting the letter 'A' which sounds similar. Hence, immediately, the plaintiff caused an extensive search in the market and was shocked to find that the defendant had clandestinely mixed their product by adopting the plaintiff's trade mark "OLAMIN" in the market by lifting the letter 'A' which sounds similar. Since the defendant is actually adopting the same trade mark of the plaintiff and their trade mark is an absolute copy of the plaintiff's registered marks and their mark is deceptively similar to the plaintiff's mark, it creats absolute confusion in the market and amounts to infringement of the plaintiff's mark. Hence, the present suit has been filed for the prayer stated supra. 5. On appearance, the defendant has filed the present application under Order VII Rule 11 C.P.C. to reject the plaint filed by the plaintiff stating that there is no cause of action for filing the suit and this Court has no jurisdiction to adjudge the present suit. Though very many contentions were raised in the affidavit filed in support of the present application, learned counsel appearing for the defendant restricted his argument only with regard to the maintainability of the suit on the ground of territorial jurisdiction of this Court to try the suit as contemplated under Section 134 of the Trade Marks Act, 1999. Hence, the averments related to the territorial jurisdiction alone are extracted from the affidavit filed in support of the application, which reads as follows:- According to the plaintiff, they are having the grievance against one Med Plus Medical shop in Arumbakkam at Chennai, stating that they had sold the product OLMIN without the doctor's prescription. But, the plaintiff has not made the said medical shop as defendant in the suit. The defendant shall not be made to suffer because of the alleged mistake committed by the said medical shop and hence, they do not hold any vicarious liability. Further, the plaintiff is not having its office at Chennai and therefore, the suit is not maintainable within the jurisdiction of this Court. Thus, they sought for the rejection of the plaint. 6. The plaintiff has filed a counter stating that the cause of action for filing the suit has arisen within the jurisdiction of this Court, wherein the infringing products are extensively sold by the defendant. Thus, they sought for the rejection of the plaint. 6. The plaintiff has filed a counter stating that the cause of action for filing the suit has arisen within the jurisdiction of this Court, wherein the infringing products are extensively sold by the defendant. In fact, the plaintiff had issued a legal notice on 2.5.2011 to M/s. Eris Theraupetic Pvt. Ltd., to which a reply was issued by the defendant on 26.11.2011, wherein they had denied having any division in the name and style of M/s. Eris Theraupetic Pvt. Ltd. There is no valid preliminary objection raised by the defendant and the entire application is devoid of merits. Thus, they sought for the dismissal of the application. 7. It is the submission of the learned counsel appearing for the defendant that since the plaintiff is not carrying on business by having office within the territorial jurisdiction of this Court, the suit is not maintainable within the jurisdiction of this Court. In this regard, learned counsel appearing for the defendant by inviting the attention of this Court to Section 134 of the Trade Marks Act, 1999, submitted that no suit for infringement of a registered trademark could be filed, if the plaintiff is not carrying on their business within the local limits of a Court. The present suit has been filed only on the allegation that the defendant's product was exclusively sold within the jurisdiction of this Court. For this purpose, the plaintiff has filed a purchase bill issued by one Med Plus Medical shop at Arumbakkam, Chennai. But, the said medical shop was not added as a party to the suit. The sale of a product within the jurisdiction of this Court itself is not sufficient to file the suit for infringement of registered trade mark before this Court. Therefore, the plaint is liable to be rejected for want of jurisdiction. In this regard, the learned counsel appearing for the defendant has relied upon the decisions reported in 2010 (43) PTC 26 (Del) - Matrumal Dhannalal Oil Mill v. Abhishek Enterprises, LAWS (DLH)-2013-4-141 - Heinz India Pvt. Ltd v. M/s. Shrejee Remedies and A.I.R. 1977 Supreme Court 2421 -T. Arivandandam v. T.V. Satyapal and another. 8. Per contra, learned counsel appearing for the plaintiff submitted that if the trade mark has been registered within the jurisdiction of this Court, that would suffice to file the suit before this Court. 8. Per contra, learned counsel appearing for the plaintiff submitted that if the trade mark has been registered within the jurisdiction of this Court, that would suffice to file the suit before this Court. In the instant case, the trade mark of the plaintiff has been registered in the office of the Registrar of Trade Mark at Chennai. Secondly, the infringing products are being sold extensively within the jurisdiction of this Court. Hence, the suit is maintainable. In support of his contention, learned counsel appearing for the plaintiff has relied upon the judgment of this Court reported in 1998 (II) CTC 230 - Ramu Hosieries, rep. by its Sole Proprietor Mr. M. Murugeshan v. Ramu Hosieries, rep. by its Partner Pandela Ramu and another. 9. Keeping the submissions made on either side, I have carefully gone through the entire materials available on record. 10. On a perusal of the materials available on record, I find that the present suit has been filed before this Court only on the ground that the defendant's product viz., OLMIN is being exclusively sold within the jurisdiction of this Court. For this purpose, the plaintiff has also produced the purchase bill issued by one Med Plus Medical Shop at Arumbakkam, Chennai. But, it is the submission of the learned counsel appearing for the defendant that unless the plaintiff carries on business by having an office at Chennai, this Court will not have jurisdiction to entertain the suit merely based on the averment that the product of the defendant is being exclusively sold at Chennai. In this regard, learned counsel appearing for the defendant has also invited the attention of this Court to Section 134 of the Trade Marks Act, 1999 and the same is extracted hereunder:- "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 marks which is identical with or deceptively similar to the plaintiff's trade marks, 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 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 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. Explanation:- For the purposes of sub-section (2), "person" includes the registered proprietor and the registered user. A reading of Section 134 of the Trade Marks Act, 1999 would show that notwithstanding anything contained in the Code of Civil Procedure, 1908, if 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, the suit can be filed within the jurisdiction of the Court where the plaintiff resides. Therefore, in my considered opinion, atleast the plaintiff should have their branch office within the jurisdiction of this Court to file the present suit. Admittedly, in this case, the plaintiff is not having their office within the jurisdiction of this Court. Similarly, the defendant is also not having their office at Chennai. Now, the plaintiff has filed the present suit before this Court only based on a medical bill issued by one Med Plus Medical shop at Arumbakkam, Chennai, stating that the defendant's products are being exclusively sold within the jurisdiction of this Court. When the plaintiff is not having any office within the jurisdiction of this Court, the suit filed by the plaintiff is not maintainable within the jurisdiction of this Court as per Section 134 of the Trade Marks Act, 1999. In this regard, it would be appropriate to refer some of the judgments relied upon by the learned counsel appearing for the defendant. (A) In the decision reported in 2010 (43) PTC 26 (Del) -Matrumal Dhannalal Oil Mill v. Abhishek Enterprises, it has been held as follows:- "17. A cause of action will not arise when an application is filed for registration of the trademark in a given case. (A) In the decision reported in 2010 (43) PTC 26 (Del) -Matrumal Dhannalal Oil Mill v. Abhishek Enterprises, it has been held as follows:- "17. A cause of action will not arise when an application is filed for registration of the trademark in a given case. The reason being, in a given case, an application for grant of registration certificate may or may not be allowed. A person in whose favour a certificate has already been issued has the right and opportunity to oppose an application filed by a person in a given case by filing an objection application and the Registrar, in that circumstance, is required to determine the said question. Therefore, cause of action would arise only when a registered trademark is used. Simply because plaintiff has applied for registration of his trademark at Delhi vide its application dated 3rd June 2002 would not confer territorial jurisdiction on this Court. 22. In "St. Ives Laboratories Inc. v. Arif Perfumers & Anr., 2009 (40) PTC 104 (Del)", in similar circumstances this Court observed:- "5. Before entertaining a suit, the Court has to ensure whether any part of cause of action had arisen within the jurisdiction of this Court. The registration of a trademark in Delhi cannot be a ground to invoke jurisdiction of Delhi Courts. The Trade Marks Act does not provide that registration of trademark at a particular office shall be a ground for filing a suit for infringement of trademark or passing off trademark within the limits of that Court". 23. It is a settled principal of law that cause of action is a bundle of material facts which are necessary for the plaintiff to prove his case so as to entitle him to succeed in a given case. However, each and every fact pleaded ipso facto does not lead to the conclusion that the facts so pleaded give rise to cause of action within the Court's territorial jurisdiction. Since plaintiff has not been able to show prima facie from the averments contained in the plaint that it is carrying on its business within the local limits of territorial jurisdiction of Delhi, the provision of Section 134 of the Act do not come to his rescue. 34. True, that copyright of the plaintiff as regards "RADHA KRISHNA with device of Radha Krishna Label" is registered at Delhi. 34. True, that copyright of the plaintiff as regards "RADHA KRISHNA with device of Radha Krishna Label" is registered at Delhi. Mere registration of the copyright at Delhi, as discussed above does not confer territorial jurisdiction on this Court. Plaint is absolutely silent as to how defendant has infringed his copyright specially when in his statement on oath, defendant has deposed that he never sold his goods in Delhi or anywhere else infringing the copyright of the plaintiff, "RADHA KRISHNA with device of Radha Krishna Label". Perusal of the labels used by the plaintiff on his products under the trademark "RADHA KRISHNA" and the label printed on the products sold by the defendant prima facie indicate that defendant has in no manner infringed the copyright of the plaintiff. To vest territorial jurisdiction in this Court, plaintiff is required to specifically plead if defendant has infringed his copyright while passing off his goods as that of plaintiff at Delhi." A reading of the above judgment would show that to entertain a suit, the plaintiff should carry on business within the local limits or territorial jurisdiction of this Court. Otherwise, the provision of Section 134 of the Trade Marks Act, 1999 will not come to rescue. (B) In the decision reported in LAWS (DLH)-2013-4-141 - Heinz India Pvt. Ltd v. M/s. Shrejee Remedies, it has been held as follows:- "10. It is settled law that while considering an Order VII Rule 11 Code application, the Court should restrict itself to the averments made in the plaint and should not extend its consideration to the averments made in the written statement. If the plaint, when looked at as a whole can establish a substantive cause of action and the competent jurisdiction of the Court, then the plaint ought not be rejected under Order VII Rule 11 of the Code. In the present case, the plaintiff has submitted that the cause of action arose when they learnt that the defendant was selling its products under the name NEHACIL within the territorial limits of Delhi. In furtherance of this contention, the plaintiff has also claimed that this Court has the jurisdiction to try the present suit. The relevant parts of the plaint reads as follows: "20. The cause of action for the present suit accrued to the plaintiff for the first time in July 2008 when it learnt of the defendants offending activities. In furtherance of this contention, the plaintiff has also claimed that this Court has the jurisdiction to try the present suit. The relevant parts of the plaint reads as follows: "20. The cause of action for the present suit accrued to the plaintiff for the first time in July 2008 when it learnt of the defendants offending activities. The cause of action has thereafter accrued on every day that the defendant has used the trademark "NEHACIL" as its trademark in relation to its goods. 21. That this Hon'ble Court has jurisdiction to entertain and try the present suit in as much as the plaintiff carries on its business within the territorial jurisdiction of the Hon'ble Court. The plaintiff has its branch office within the jurisdiction of the Hon'ble Court. Further the defendant is supplying and selling the infringing goods in Delhi within the territorial jurisdiction of this Hon'ble Court. Further the defendant has filed an application for registration of the trademark NEHACIL LAVENDER, which further proves that the defendant has the intention of carrying on business under the impugned mark all over the country including Delhi." The plaintiff has produced on record a bill provided by one Batra Medical Hall which allegedly sold the products of the defendant under the trademark NEHACIL. 11. Before considering the application under Order VII Rule 11, it would be pertinent to refer to Section 134 of the Trademarks Act, 1999 (for short, the Act) which provides for the jurisdiction of Courts in cases of infringement and passing off. The relevant section reads as under: "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 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 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. Explanation:- For the purposes of sub-section (2), "person" includes the registered proprietor and the registered user. The instant suit being of passing off, the remedy against passing off is found under common law. Keeping this aspect in mind, in order to address the question regarding the jurisdiction of the Court in a suit for passing off, reference ought to be made to Section 20 of the Code. Section 20 of the code confers jurisdiction on those courts within whose territorial limits the defendant resides or carries on business or personally works for gain or where the cause of action has wholly or partly arise. 12. On a reading of the plaint in totality, I find that the averment made in paragraphs 20 and 21 contending the cause of action arose in Delhi, thereby conferring jurisdiction on this Court, is on precarious grounds. The plaintiff contends that the defendant carries on business in Delhi based on one bill produced on record of one Batra Medical Hall. The defendant has categorically refuted carrying on any business or working for gain in Delhi. To my mind this alone cannot be said to substantiate the claim of the plaintiff that the cause of action arose in Delhi." The dictum laid down in the above judgment would show that under Section 134 of the Trade Marks Act, no suit for infringement of a registered trade mark could be filed if the plaintiff does not carry on business within the jurisdiction of that Court. Hence, unless the plaintiff personally works for gain by carrying on business within the jurisdiction of this Court, the suit filed by the plaintiff for infringement of trade mark cannot be entertained by this Court merely based on a receipt issued by one of the medical stores situated within the jurisdiction of this Court. Hence, unless the plaintiff personally works for gain by carrying on business within the jurisdiction of this Court, the suit filed by the plaintiff for infringement of trade mark cannot be entertained by this Court merely based on a receipt issued by one of the medical stores situated within the jurisdiction of this Court. In the instant case, admittedly neither the plaintiff nor the defendant is carrying on their business within the jurisdiction of this Court. Hence, I am of the opinion, the plaint is liable to be rejected for want of jurisdiction. 11. Though the learned counsel appearing for the plaintiff relied upon the judgment reported in 1998 (II) CTC 230 - Ramu Hosieries, rep. by its Sole Proprietor Mr. M. Murugeshan v. Ramu Hosieries, rep. by its Partner Pandela Ramu and another, in the said judgment, Section 134 of the Trade Marks Act, 1999 was not dealt with and hence, the same cannot be applied to the facts of the present case. Therefore, I am not inclined to accept the submission made by the learned counsel appearing for the plaintiff in this regard. 12. For all the reasons stated above, I am of the opinion, the plaint in C.S.No.426 of 2013 is liable to be rejected and accordingly, rejected and the present application is allowed. No costs. Consequently, all the connected applications are closed.