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W.P.(C) 11035/2015 & CM APPL. 28492/2015 (STAY)
VIFOR (INTERNATIONAL) LIMITED ..... Petitioner
Through : Mr.Sudhir Chandra and Mr.Gopal Jain, Sr. Advs. with Ms.Vaishali Mittal, Mr.Siddhant Chamola, Mr.Aditya Gupta, Ms.Kritika Vijay and Ms.D.Neha Reddy, Advs.
Through : Mr.Sanjoy Ghose, Adv.
ASIAN PATENT ASSOCIATION ( INDIAN GROUP) ..... Petitioner
Through : Ms.Pratibha M. Singh, Sr. Adv. with
Ms.Radha Chawla, Mr.Devanshu Khanna and Ms.Tara Ganju, Advs.
Through : Mr.Raj Shekhar Rao, Adv.
HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
03.12.2015 In this matter, we have had the benefit of hearing learned senior counsel appearing on behalf of the petitioners and counsel for the respondent.
2015:DHC:9893-DB W.P.(C) Nos.11035/2015 & 11043/2015
The prayer made in these writ petitions being common is that the cases, arising out of the five Statutes i.e. Patents Act, 1970; Trademarks Act, 1999;
Designs Act, 2000; Copyright Act, 2000; and The Geographical Indications of
Goods (Registration And Protection) Act, 1999, of the value less than Rs.1.00 crore are not required to be transferred in view of the Proviso to Section 7 of the
Commercial Court, Commercial Division and Commercial Appellate Division
Ordinance, 2015 (hereinafter referred to as „Proviso to Section 7 of the
Ordinance‟).
Section 7 and the First Proviso to Section 7 of the Ordinance reads as under:
“All suits and applications relating to commercial disputes of a Specified
Value filed in a High Court having ordinary original civil jurisdiction shall be heard and disposed of by the Commercial Division of that High
Court:
Provided that all suits and applications relating to commercial disputes, stipulated by an Act to lie in a court not inferior to a
District Court, and filled on the original side of the High Court, shall be heard and disposed of by the Commercial Division of the
High Court.”
Learned senior counsel appearing on behalf of the petitioners submit that as per the various Sections of the aforestated five Acts, a suit would not lie in any Court inferior to a District Court. In support of this submission, learned senior counsel rely upon the relevant Sections, Actwise, which read as under:
Statute Patents Act, Trademarks Act, 1999 Designs
Act,2000 Copyright Act, Geographical Indications Of
Goods (Registration And Protection)
Act, 1999 Relevant Provisions Section 104 Section 134: Proviso to
Section Section 62 Section 66 - Suit for 2015:DHC:9893-DB
W.P.(C) Nos.11035/2015 & 11043/2015 Jurisdiction-
No suit for a declaration under section 105 or for any relief under section 106 or for infringement of a patent shall be instituted in any court inferior to a district court having jurisdiction to try the suit:
Provided that where a counter-claim for revocation of the patent is made by the defendant, the suit, along with the counter-claim, shall be transferred to the High Court for decision
Suit for Infringement, etc. to Be Instituted Before District
Court—
ORDER
(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. For the purpose of clauses (a) and (b) of subsection (1), a “District Court having jurisdiction” shall, notwithstanding anything contained in the 22(2) No suit or any other proceeding for relief under this subsection shall be instituted in any court below the court of District Judge. 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 subsection (1), and "district court having jurisdiction" 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 the institution of the suit or other proceeding, the person instituting the suit or other proceeding or, where there are infringement, etc., to be instituted before district court (1) No suit,— (a) for the infringement of a registered geographical indication; or (b) relating to any right in a registered geographical indication; or
(c) for passing of arising out of the use by the defendant of any geographical indication which is identical with or deceptively similar to the geographical indication relating to the plaintiff, 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 2015:DHC:9893-DB W.P.(C) Nos.11035/2015 & 11043/2015 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 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. more than one such persons, any of them actually and voluntarily resides or carries on business or personally works for gain. clauses (a) and (b) of subsection (1), a "district Court having jurisdiction" 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 authorised user. It is the submission of learned senior counsel for the petitioners that a reading of the Proviso to Section 7 of the Ordinance would show that all the suits and applications relating to commercial disputes stipulated by an Act to lie in a court not inferior to a District Court would pertain to the above five Acts. Interpreting this proviso further, it is submitted that in case any suit arising out of the above five Acts has already been filed on the Original Side of the High Court, the same is to be heard and disposed of by the Commercial Division of the High Court, as per the Proviso to Section 7 of the Ordinance. In effect, the suits pending in this case arising out of the five Acts even if their value is less than Rs.1.00 crore, is to be tried by the Commercial Division of the High Court. Additionally, it is submitted that in case an application for amendment of the plaint is filed, the respective Single Judges must hear and consider the same in accordance with law, as counsel contend that there are decisions, as per which, an amendment application can be entertained even if the jurisdictional value of the Court has changed (increased or decreased). It is further submitted that such a direction is required as amendment applications are not being accepted by the Registry. Mr.Ghosh submits that the Ordinance is likely to be replaced by an Act in the Winter Session of the Parliament, which is already underway and the Act in the final form may clarify some of the ambiguities. It is, thus, prayed that both these matters should be taken up in the middle of January, 2016. After hearing learned senior counsel for the petitioners and Mr.Sanjoy Ghose and Mr.Raj Shekhar Rao, counsel for the respondent/Delhi High Court, we are of the view that, prima facie, interpretation to Proviso to Section 7 of the Ordinance requires consideration. Accordingly, till the next date of hearing, cases arising out of Patents Act, 1970; Trademarks Act, 1999; Designs Act, 2000; Copyright Act, 2000; and The Geographical Indications of Goods (Registration And Protection) Act, 1999, shall not be transferred and in case application seeking amendment in the pecuniary value is filed, they shall be considered by the respective Single Judges in accordance with law. List on 19.1.2016. Let a copy of this order be given DASTI under the signature of Court Master to counsel for the parties. G.S.SISTANI, J SANGITA DHINGRA SEHGAL, J DECEMBER 03, 2015 msr /