R X Infotech Private Limited v. Jalpa Rajesh Kumar Jain

1. This is an application, by the defendant, under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) for rejection of the plaint on the ground of want of territorial jurisdiction.

2. Though a finding of want of territorial jurisdiction would ordinarily carry one to Order VII Rule 10 of the CPC rather than Order VII Rule 11 of the CPC, Ms. Kangan Roda has drawn my attention to a judgment of the Division Bench of this Court in Radico Khaitan Ltd. v. Nakshatra Distilleries & Breweries Ltd[1] which upholds the decision of a learned Single Judge to reject a plaint under Order VII Rule 11 of the CPC on the ground of want of territorial jurisdiction. (2017) 241 DLT 48

3. Without, therefore, entering into the distinction between Order VII Rule 10 of the CPC and Order VII Rule 11 of the CPC, I have proceeded to hear learned Counsel on the core issue as to whether this Court can be said to be lacking in territorial jurisdiction to adjudicate the plaint. Ms. Roda initially drew my attention to para 46 of the plaint, which deals with the jurisdiction of this Court to entertain the plaint which reads thus:

4. Ms. Roda submits that invocation of the territorial jurisdiction of this Court has, therefore, been predicated in the plaint solely on Section 1342 of the Trades Mark Act, 1999. She submits that, seen solely in the light of Section 134, this plaint would not be amenable to the jurisdiction of this Court, as the case would fall within the third category of cases envisaged in para 14 of the judgment of the Division Bench of this Court in Ultra Home Construction Pvt Ltd v. Purushottam Kumar Chaubey[3]. In the said paragraph, this Court had

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 (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. Explanation. – For the purposes of sub-section (2), “person” includes the registered proprietor and the registered user. 2016 SCC OnLine Del 376 expressed the opinion, apropos Section 134(2) of the Trade Marks Act that, if the plaintiff has a principal office at one place and subordinate or branch office at another place and the cause of action arises where the subordinate office is located, the plaintiff would be deemed to be carrying on business where the subordinate office is located and would necessarily have to institute the suit before the Court having jurisdiction over the subordinate office, and not before the Court having jurisdiction over the principal office, which would be coram non judice. The said passage reads thus: “14. It is evident from the above observations that the interpretation given to the expression “carries on business” in the context of a defendant under section 20 of the Code has also been employed in the context of a plaintiff under the said sections 134(2) and 62(2). Thus, in addition to the places where suits could be filed under section 20 of the Code, the plaintiff can also institute a suit under the Trade Marks Act, 1999 and the Copyright Act, 1957, as the case may be, by taking advantage of the provisions of section 134(2) or section 62(2), respectively. Both the latter provisions are in pari materia. Under these provisions four situations can be contemplated in the context of the plaintiff being a corporation (which includes a company). First of all, is the case where the plaintiff has a sole office. In such a case, even if the cause of action has arisen at a different place, the plaintiff can institute a suit at the place of the sole office. Next is the case where the plaintiff has a principal office at one place and a subordinate or branch office at another place and the cause of action has arisen at the place of the principal office. In such a case, the plaintiff may sue at the place of the principal office but cannot sue at the place of the subordinate office. The third case is where the plaintiff has a principal office at one place and the cause of action has arisen at the place where its subordinate office is located. In this eventuality, the plaintiff would be deemed to carry on business at the place of his subordinate office and not at the place of the principal office. Thus, the plaintiff could sue at the place of the subordinate office and cannot sue (under the scheme of the provisions of section 134(2) and 62(2)) at the place of the principal office. The fourth case is where the cause of action neither arises at the place of the principal office nor at the place of the subordinate office but at some other place. In this case, the plaintiff would be deemed to carry on business at the place of its principal office and not at the place of the subordinate office. And, consequently, it could institute a suit at the place of its principal office but not at the place of its subordinate office.” (Emphasis supplied)

5. If one were to examine the issue of jurisdiction in the present case solely with reference to Section 134, then, perhaps, the submission of Ms. Roda, might pass muster. However, Ultra Home Construction[3] itself referred, with emphasis, to Indian Performing Rights Society Ltd v. Sanjay Dalia[4], which held that Section 205 of the CPC would continue to apply despite Section 134 of the Trade Marks Act and that, therefore, a plaintiff xcould sue the defendant before any Court which would have jurisdiction either under Section 20 of the CPC or Section 134 of the Trade Marks Act. Section 20 of the CPC permits the institution of the plaint before any Court within whose jurisdiction the whole or any part of the cause of action has arisen.

6. Ms. Roda has sought to point out that there is no reference, in the plaint, to Section 20 of the CPC. As she somewhat quaintly expressed it, if one were to attempt a “Ctrl F” search of the plaint, with “Section 20” as the search term, it would yield no result.

20. Other suits to be instituted where defendants reside or cause of action arises. – Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction – (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

Explanation. – A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.

7. The issue of whether a particular provision has been invoked in a plaint, cannot, however, be admeasured in such a fashion, despite all the benefits that technology now provides us. One is required to read the plaint wholly and in a meaningful fashion. The cause of action, it is well settled, is a compendious term for the bundle of facts which constitute the basis for institution of the suit and which the plaintiff has to prove in order to entitle itself to an order or a decree[6]. If, therefore, any part of the facts pleaded in the plaint discloses a cause of action having arisen in Delhi; then, despite there being no specific reference to Section 20 in the plaint, the suit would, nonetheless, be maintainable before this Court.

8. Various decisions of Division Benches of this Court[7] have held that, where the defendant is carrying on its infringing activities across, inter alia, a website which is interactive, then, every Court which has jurisdiction over a place where the website can be interactively accessed would be competent to adjudicate on an infringement suit. The prevailing reason for so holding, as per the said decisions, is that, by making its infringing products available, or carrying out its infringing activity on a virtual platform of website, the infringer defendant has purposefully availed the jurisdiction of every Court where the website can be accessed.