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Date of Decision: March 12, 2010
M/S MATRUMAL DHANNALAL OIL MILL …..Plaintiff
Through: Mr. S.K. Bansal Advocate with Mr. Ajay Amitabh Suman, Advocate
Through: Mr. Shailen Bhatia Advocate with Mrs. Amita Kapur, Advocate, Mr. Amit Jain, Advocate.
JUDGMENT
(1) Whether reporters of local paper may be allowed to see the judgment? (2) To be referred to the reporter or not? Yes (3) Whether the judgment should be reported in the Digest? Yes
JUDGMENT
1. By way of this order, I shall dispose of an application filed by the defendant under Order 7 Rule 11 read with Section 151 of Code of 2010:DHC:1456 Civil Procedure (hereinafter referred to as „CPC‟) seeking dismissal of the suit on the ground that this Court has no territorial jurisdiction to entertain the present suit.
2. Plaintiff firm is engaged in the business of manufacturing, marketing and selling of edible oil and oil cakes etc. under the trade mark „RADHA KRISHNA’ with device of Radha Krishna Label. Said trade mark is registered under Class 29 of the Trade Marks Act, 1999 (hereinafter referred to as „Act‟) having registration No.130471. Plaintiff is also the holder of Copy Right vide Registration Nos. A-66428/04 and A-67738/04 respectively for the said trade mark. Defendant is engaged in the similar business of edible oil and oil cakes, etc. and is supplying his goods under the name and style of „RADHA MOHAN’ WITH DEVICE OF RADHA KRISHNA LABEL. Plaintiff claims that user of trade mark „RADHA MOHAN‟ by the defendant is infringement of his trade mark „RADHA KRISHNA‟ and also infringement of his copy right in the said trade mark. Defendant is passing off his goods to the public as if the said goods are manufactured and sold in the market by the plaintiff.
3. Defendant contested the suit denying any violation of plaintiff‟s trade mark and copy right by him by selling his goods in the name of „RADHA MOHAN‟, for which he has already applied to the supplied by him in various States except Delhi. Defendant has also disputed the territorial jurisdiction of this Court to entertain the suit alleging that both the parties to the petition are residing and working for gain outside the jurisdiction of this court; the trade mark and copy right is registered by the plaintiff at Bombay and he is not supplying his goods at Delhi.
4. Mr. Shailen Bhatia, learned counsel for the defendant has argued that both the parties are residing and working for gain in U.P. as plaintiff is residing and working for gain at Hathras, whereas defendant is carrying on his business at Agra. Suit has been filed under Sections 134 and 135 of the Trade Marks Act, 1999. However, provisions of Section 134 of the Act are not applicable to the facts and circumstances of the case. He further argued that relief claimed in the suit for infringement or for passing off is governed under Section 135 of the Act and the suit therefore, cannot be entertained by this Court. He has relied on the following judgments:-
(i) Surendra Kumar Maingi vs. M/s. Dodha House, AIR 1998
(ii) Haryana Milk Foods Ltd. vs. Chambel Dairy Products, 2002
(25) PTC 156 (Del);
(iii) Gupta Brothers Conduit Pipe Manufacturing Co. Pvt. Ltd.
vs. Anil Gupta & Anr., 2001 (24) PTC 159 (Del);
(iv) Dabur India Limited vs. K.R. Industries, 2006 (33) PTC 348
(v) Dabur India Limited vs. K.R. Industries, 2006 (33) PTC 107
(vi) Dharampal Premchand Ltd. vs. Golden Tobacco Products,
(vii) The Indian Performing Right Society Ltd. vs. Sanjay Dalai & Anr., CS(OS) No.527/2007 decided by Badar Durrez Ahmed on 31.08.2007;
(viii) The Jay Engineering Works Ltd. vs. Ramesh Aggarwal,
(ix) M/s. Dhodha House vs. S.K. Maingi WITH M/s. Patel Field
Marshal Industries & Ors. vs. M/s. P.M. Diesel Ltd., AIR 2006 SC 730.
5. Mr. S.K. Bansal, learned counsel for the plaintiff has submitted that this court has the territorial jurisdiction to entertain the suit. In para 23 of the plaint, plaintiff has specifically pleaded that this court has territorial jurisdiction to entertain the suit. To determine territorial jurisdiction of a Civil Court, the court has to see averments contained in the Plaint and not defence raised by the defendant in the written statement. He has submitted that as per the averments contained in the Plaint, prima facie, jurisdiction of this court to entertain the suit is clearly made out.
6. He has further argued that trade mark of the plaintiff is registered in Delhi, plaintiff has applied for registration of trade mark for his other products in Delhi and the defendant has also applied for registration of his trade mark at Delhi. Therefore, Delhi Court has territorial jurisdiction to entertain the suit. He has referred to the following judgments:-
(i) Amrutanjan Limited vs. Ashwin Fine Chemicals &
(ii) S. Oliver Bernd Freier GmbH & Co. KG vs. Karni
(iii) M/s. Govardhan Motels & Restaurants vs. I. Subramanyam & Anr., 2008 (36) PTC 513 (Del);
(iv) Intas Pharmaceuticals Limited vs. Allergan Inc., 2006 (32)
PTC 272 (Del.) (DB);
(v) Pfizer Products, Inc. vs. Rajesh Chopra & Ors., 2006 (32)
(vi) L.G. Corporation & Anr. vs. Intermarket Electroplasters (P)
(vii) Jagdamba Oil Agency vs. K.S. Oils Limited & Anr., 2006
(33) PTC 447 (MP).
7. To appreciate respective submissions of the parties, I feel the necessity of reproducing para 23 of the plaint which speaks of territorial jurisdiction of this court to entertain the suit. It reads:-
20. Thus, it is clear that defendant has applied for registration of trademark „Radha Mohan‟ Brand for sale, distribution, etc. of his goods at Haryana, Uttar Pradesh, Rajasthan and Madhya Pradesh but has not applied for registration of the said Trademark for sale of goods at Delhi. Rather, he has given an undertaking that he has no intention to sell, manufacture or deal in any manner with its goods in Delhi under „Radha Mohan Brand‟ and that he would not apply for the said trademark for sale of goods at Delhi.
21. Under these circumstances, apprehension of the plaintiff that defendant would sell or pass off his goods as that of the plaintiff at Delhi is completely nullified.
22. In „St. Ives Laboratories Inc. vs. Arif Perfumers & Anr., MANU/DE/0151/2009’, in similar circumstances this court observed:-
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 prime 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.
24. In Haryana Milk Foods Ltd.’s case (supra), it was observed that:-
25. Similarly, in Gupta Brothers Conduit Pipe Manufacturing Co. Ltd. case (supra), when plaintiff failed to show that it carries on business in Delhi, this Court held that averments made in the plaint failed to confer territorial jurisdiction on this Court.
26. Provisions contained in Section 62 of the Copy Right Act when read are very similar to the provisions contained in Section 134 of the Act. By virtue of Section 62 (2) of the Copy Right Act, plaintiff is entitled to file a suit for infringement of copyright in the District Court within the local limits of whose jurisdiction at the time of the institution of the suit or other proceedings, the plaintiff actually was/is voluntarily residing or carrying on its business or personally works for gain. As discussed above, plaintiff has failed to make out a case in the plaint that it is voluntarily residing or carrying on its business or working personally for gain within the territorial jurisdiction of Delhi Courts. Therefore, plaintiff cannot invoke provisions of Section 62 (2) of the Copy Right Act to vest territorial jurisdiction in this Court.
27. When the advantage given to the plaintiff to file a suit under Section 134(2) of the Act and under Section 62(2) of the Copy Right Act cannot be availed of by it in this case, it is to be seen if forum of Section 20 CPC is available to it to invoke territorial jurisdiction of this court. This Court can entertain the suit only if averments in the plaint substantially meet the criteria as laid down by provisions of Section 20 CPC.
28. Section 20 CPC reads as under:-
29. Essentially, this case does not fall within the criteria of Section 20 (a) and (b) of CPC. It is also not the case of the plaintiff that defendant is residing in Delhi and/or is personally working for gain at Delhi. The address of the defendant as given in the plaint is that of Agra. None of the documents placed on record by the plaintiff indicate that defendant has been passing off his goods as that of plaintiff at Delhi. Defendant is running a small business at Agra only and, therefore, it cannot be said that he is doing his business all over India including Delhi. Averments contained in the plaint also do not specifically indicate that defendant is carrying on his business and is working for gain at Delhi.
30. Next to be seen by the Court is whether this suit falls within the criteria as laid down under Section 20 (c) CPC.
31. The said provision enables the plaintiff to file a suit at all such places where the cause of action arises either wholly or in part. For that purpose, whether the defendant has been selling its products in Delhi or not becomes wholly irrelevant as the Court has to see the averments contained in the plaint to determine whether it has the territorial jurisdiction to entertain the suit.
32. As discussed above, plaint does not disclose if the defendant has been selling its products on a commercial scale at Delhi. Mr. Pawan Kumar Mittal, Proprietor of the Defendant firm made a statement that he never sold any goods manufactured or dealt by him in Delhi in the past nor was selling any goods in Delhi at present. He undertook not to sell, manufacture or deal with his goods in future in Delhi. The relevant part of his statement reads as under:- “…..I have never sold any goods manufactured or dealt by me in Delhi in the past nor I am selling any goods in Delhi at present. I also undertake that I shall not sell, manufacture or deal with goods in future in Delhi. I have no intention to sell, manufacture or deal in any manner any of goods in Delhi under „Radha Mohan Brand.
33. Under these circumstances, it can be safely inferred that no cause of action wholly or in part arose at Delhi and therefore, plaintiff‟s case does not fall within the ambit of Section 20 (c) CPC, so as to vest territorial jurisdiction in this case.
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.
35. Since in this case the jurisdiction has been invoked by the plaintiff by joining two causes of action in terms of provisions of CPC, the same would not mean that thereby the jurisdiction could be conferred upon the court which had jurisdiction to try only the suit in respect of one cause of action and not the other. Recourse to the additional forum in a given case can be adopted by the plaintiff, if both the causes of action arose within the jurisdiction of the Court which otherwise had the necessary jurisdiction to decide all the issues. Jurisdiction of this court has been invoked by the plaintiff by joining two causes of action i.e. infringement of his registered trademark and infringement of registered copyright, when, none of the causes of action arose within the jurisdiction of the Court.
36. In Amrutanjan Limited’s case (supra), where jurisdiction of Madras Court was invoked by the plaintiff alleging that his trademark was registered at Madras, he was manufacturing its products at Madras and marketing the said products throughout the country and his trademark allegedly being offended by the defendant in one part of the country i.e. Madhya Pradesh and the situs of the property in the trademark of the plaintiff also being at Madras, applying provisions of Section 20 CPC, it was held that suit of the plaintiff based on infringement of its trademark filed at Madras Court was maintainable and the Court had the jurisdiction to try the case in accordance with law. In this case, plaintiff is neither manufacturing nor is supplying its goods at Delhi and essentially he is supplying goods in UP and Bihar and even the registration of the trademark is at Bombay; provisions of Section 20 CPC cannot be applied.
37. Similarly, in S. Oliver Bernd Freir Gmbh’s case (supra), where trademark of the plaintiff was registered at Delhi, it was exporting goods from Delhi and defendant had applied for registration of their trademark on an all India basis for sale of goods all over India and there was no assertion from the side of the defendant that they did not intend to sell their goods in Delhi, it was held that High Court at Delhi had jurisdiction to entertain the suit. In the instant case, defendant has made a statement on oath that he has not applied for registration of his trademark for supplying of goods at Delhi and all over India, except Haryana, UP, Bihar and Madhya Pradesh.
38. M/s. Govardhan Motels’s case (supra), is not applicable to the facts and circumstances of this case. From bare reading of plaint, it is clear that no part of cause of action arose in favour of the plaintiff at Delhi. Therefore, it is not a case which needs determination of issue of cause of action after a full fledged trial.
39. In Intas Pharmaceuticals Limited’s case (supra), Section 20 of CPC was invoked and not Section 134 of the Trade Marks Act. In the said case, defendant had admitted in the written statement that he was selling the offending products in Delhi and therefore, it was held that Courts at Delhi had the jurisdiction to try the suit.
40. In Pfizer Products case (supra), this Court held that if whatever stated in the plaint is correct, the Court would have to also assume that the threat or the intention of the defendants to sell and offer for sale the offending goods in Delhi is also correct and therefore, if the threat exists then this Court has the jurisdiction to entertain the suit. In view of statement of Pawan Kumar Mittal, Proprietor of the defendant firm, the alleged threat or his intention to sell and offer for sale the offending goods in Delhi is belied. Hence, this judgment has no bearing on this case.
41. In L.G. Corporation & Anr.’s case (supra), plaintiff had not only averred specifically in the plaint but had also placed on record documents to show that defendants were selling their infringing goods violating trademark of the plaintiff at Delhi. Under the said circumstances, it was held that the Court at Delhi had jurisdiction to entertain the suit. On the facts of this case and the averments contained in the plaint, this judgment is of no help to the plaintiff. It is noted that in the said case, counsel for the plaintiff had conceded that filing of an application for registration of the trademark in the Trademarks Registry, Delhi, would not give jurisdiction to this Court.
42. In Jagdamba Oil Agency’s case (supra), L.G. Corporation & Anr.’s case (supra) was followed.
43. Above said decisions relied upon by the plaintiff do not advance its case as in all those cases, Court found clear averments in the plaint indicating that plaintiff either had the office in Delhi or was carrying on business in Delhi and that the infringing goods of the defendants were actually sold in Delhi.
44. Therefore, under these circumstances, plaintiff has failed to show that it carries on its business at Delhi or that defendant has been selling his goods at Delhi and passing off as that of the plaintiff. Hence, I hold that averments made in the plaint have failed to confer any territorial jurisdiction on this Court. Application is accordingly allowed.
45. Once it is held that Court has no territorial jurisdiction, it need not go into the merits of the case and deal with the matter in controversy.
46. Plaint is ordered to be returned to the plaintiff along with original documents for presentation to the proper court of jurisdiction. There are no orders as to costs. Suit and all other applications stand disposed of.
ARUNA SURESH (JUDGE) MARCH 12, 2010 vk/sb