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2016 DIGILAW 885 (DEL)

KISAN MOULDINGS LTD. v. KONARK POLYTUBES (P) LTD.

2016-02-17

VIPIN SANGHI

body2016
ORDER : I.A. No. 18111/2015 (Order 7, Rule 10 and 11 CPC filed by defendant) 1. The present application filed under Order 7, Rule 10 and 11 of the CPC has been filed by the defendant for rejection of the plaint as it is stated that this court has no territorial jurisdiction to entertain and try the present suit. 2. The submission advanced by the defendant is that the plaintiff company has its head office/registered office at Mumbai and the suit is filed in this court on the plea that the defendant is conducting/soliciting/selling and marketing their goods under the impugned trademark/label/packaging "within the jurisdiction of this Hon'ble Court and all parts of India." 3. The plaintiff has also invoked the provision of Section 134(2) of the Trade Marks Act, 1999 to justify the filing of the suit in this court. The trademark/label KISAN is claimed by the plaintiff No. 1 i.e. M/s. Kisan Mouldings Ltd. The plaintiff No. 2 is the exclusive dealer of plaintiff No. 1. The submission of learned counsel for the defendant/applicant is that the defendant is small time entrepreneur, which is carrying on business within the limits of Aligarh and in adjoining areas. The defendant has no sales network in Delhi and its products are not being sold in Delhi. The further submission is that the plaintiff has made a bald and omnibus statement that the defendant is selling its products with the impugned trademark/labels/packaging within the jurisdiction of this court and in other parts of India. 4. Counsel for the defendant has also placed reliance on the judgment of the Supreme Court in Indian Performing Rights Society Ltd. v. Sanjay Dalia, (2015) 10 SCC 161 . A perusal of the said decision shows that the plaintiff No. 1 could maintain the suit either at the place where its principal place of business is situated-which in the present case is Mumbai (by resort to Section 134(2) of the Trademarks Act, 1999) or before the court within whose jurisdiction the cause of action has arisen and the plaintiff has a subordinate office. In the present case, the averment with regard to the arising of cause of action within the jurisdiction of this court is devoid of any particulars, and the plaintiff has merely stated that the defendant is carrying on its business of selling the goods with the trademark/label/packaging, within the jurisdiction of this court. 5. In the present case, the averment with regard to the arising of cause of action within the jurisdiction of this court is devoid of any particulars, and the plaintiff has merely stated that the defendant is carrying on its business of selling the goods with the trademark/label/packaging, within the jurisdiction of this court. 5. However, it has not been disclosed as to where the said goods are being sold. The goods in question namely PVC Pipes would obviously be sold at some shops/outlets. Pertinently, the plaintiff has not even sought for an appointment of Local Commissioner for seizing the infringing goods from any location within the jurisdiction of this court. 6. Order 6, Rule 4 of CPC states that in all cases, in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, (the forms set out in Appendix A), particulars (with dates and items if necessary) shall be stated in the pleading. 7. Thus, for the plaintiff to claim jurisdiction of this court, it was essential and necessary for the plaintiff to state the particulars of places at which the defendants infringing the products were/are being sold within the jurisdiction of this court. 8. Learned counsel for the plaintiff, at this stage, seeks a short adjournment to take instructions to the effect, whether the plaintiff wishes to pursue this suit in this court, or to withdraw the present suit with liberty to file the same before the court having jurisdiction to entertain and try the present suit. 9. At request of learned counsel for the plaintiff, renotify on 20th February 2016. 10. At this stage, Mr. Sarfaraz Khan, Local Commissioner appointed by this Court has appeared and drawn attention of this court to order dated 30th September 2015. Vide order dated 30th September 2015, on perusal of the report of the Local Commissioner, the court directed issuance of contempt notices to the SSP, SP of Aligarh (UP) and also to the SHO of Police Station Banna Devi, Aligarh, UP, returnable for today. 11. The record shows that the plaintiff had filed the process fee for issuance of notices along with particulars of the three contemnors. The draft notices to be issued was also approved on 7th November 2015. 11. The record shows that the plaintiff had filed the process fee for issuance of notices along with particulars of the three contemnors. The draft notices to be issued was also approved on 7th November 2015. However, there is no document placed on record to show that the notices were actually issued and there is also no report whether they are served or not. The Registry shall report in this regard before the next date of hearing. In case notices were not issued, the responsibility of the erring official/officer shall be fixed. 12. List on 22.02.2016.