2013 (4) TMI 890 - HC - Companies Law

Summary

Issues Involved:
1. Application under Order VII Rule 11 for rejection of plaint.
2. Application under Order XXXIX Rules 1 and 2 for temporary injunction.
3. Jurisdiction of the Court.
4. Passing off and trademark infringement claims.

Summary:

1. Application under Order VII Rule 11 for rejection of plaint:
The defendant filed an application under Order VII Rule 11 of the Civil Procedure Code (the Code) for rejection of the plaint. The Court noted that while considering such an application, it should restrict itself to the averments made in the plaint and not extend its consideration to the written statement. The Court found that the plaintiff's claim that the cause of action arose within the territorial limits of Delhi was based on precarious grounds. The plaintiff's reliance on a single bill from Batra Medical Hall to substantiate its claim was insufficient. The Court cited the case of "M/S Lakhan Pal Shyam Kumar vs M/S Ram Prasad Gupta" to emphasize that bald averments without cogent material cannot form the basis for jurisdiction. Consequently, the application under Order VII Rule 11 was allowed, and the plaint was rejected.

2. Application under Order XXXIX Rules 1 and 2 for temporary injunction:
Given the rejection of the plaint under Order VII Rule 11, the application under Order XXXIX Rules 1 and 2 for temporary injunction was consequentially dismissed.

3. Jurisdiction of the Court:
The plaintiff argued that the Court had jurisdiction because it had a branch office in Delhi and the defendant was supplying and selling infringing goods in Delhi. The plaintiff produced an invoice from Batra Medical Hall to support this claim. However, the defendant refuted any business connection with Batra Medical Hall and argued that the mere presence of the plaintiff's branch office in Delhi did not confer jurisdiction. The Court referred to Section 134 of the Trade Marks Act, 1999, which outlines the jurisdiction of courts in cases of infringement and passing off, and Section 20 of the Code, which confers jurisdiction based on the defendant's residence or place of business. The Court found the plaintiff's claim of jurisdiction to be on precarious grounds and insufficiently substantiated.

4. Passing off and trademark infringement claims:
The plaintiff sought a permanent injunction against passing off and damages u/s 27 of the Trade Marks Act, 1999, claiming that the defendant's use of the mark NEHACIL was deceptively similar to its mark NYCIL. The plaintiff had issued a Cease and Desist Notice and filed a criminal complaint, which was dismissed by the Chief Judicial Magistrate, Ahmedabad. The plaintiff also filed a Rectification Petition for the removal of the defendant's trademark registration. The defendant argued that it had been using the trademark NEHACIL openly and continuously since 1998 and was the registered proprietor of the mark. The defendant also submitted that the controversy was the subject of another suit pending before the City Civil Court, Ahmedabad.

Conclusion:
The Court allowed the application under Order VII Rule 11, rejecting the plaint, and consequentially dismissed the application under Order XXXIX Rules 1 and 2. The Court found that the plaintiff failed to substantiate its claim of jurisdiction and cause of action within the territorial limits of Delhi.