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TMI Blog2015 (7) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... ngement is alleged and the entire cause of action, as alleged in the plaint, has arisen in Mumbai, Maharashtra. 4. Civil Suit FAO (OS) No. 359/2007 has been filed in the High Court at Delhi, by virtue of the fact that the Branch Office of the plaintiff is situated at Delhi and the plaintiff is carrying on the business at Delhi. However, it is not disputed that the plaintiff's Head Office is situated at Mumbai. The objection was raised by the defendant with regard to the territorial jurisdiction of the court at Delhi. The single Bench and the Division Bench of the High Court have upheld the objection and held that the suit should have been filed in the facts of the case, in the court at Mumbai. Hence, the impugned order has been questioned in the appeals. 5. In Civil Appeal arising out of SLP [C] No. 8253/2013 - (Advance Magazine Publishers Inc. & Anr. v. Just Lifestyle Pvt. Ltd.), the suit has been filed with respect to the infringement of the trademark. The registered office of "Vogue India" is in Mumbai. The magazine is processed and published in Mumbai. It was submitted that because the plaintiff has branch office at Delhi, it had sufficient ground for invoking the jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w Times 641] to contend that under the aforesaid provisions accrual of cause of action wholly or in part is not necessary at a place where the plaintiff chooses to file a suit where he is carrying on business. 7. On behalf of the applicants in C.A. Nos. 10643-44/2010, Mr. Sudhir Chandra, learned senior counsel, submitted that while interpreting section 62 of the Copyright Act and section 134(2) of the Trademarks Act, the intention of Parliament is to be gathered from plain and natural meaning. Heydon's `rule of mischief' is not attracted where the words of the statute are clear and unambiguous. There is no challenge to the vires of section 62 of the Copyright Act. Thus, the court cannot invoke the doctrine of reading down the provisions. Section 62 of the Copyright Act is a special legislation and confers a special right on the plaintiff where it carries on business or resides. Reading the Explanation to section 20 of the Code of Civil Procedure into section 62 will do violence to the Copyright Act. The requirement of cause of action or Explanation as to the corporation of Section 20 C.P.C. cannot be added to the aforesaid provisions. Facts of few cases cannot be considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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." 10. In order to amend and consolidate the law relating to copyrights, the matter was referred to a Joint Committee. The Joint Committee of the Houses submitted the report which contained the object of the provisions of section 62 is that many authors are deterred from instituting infringement proceedings because the court in which the proceedings are to be instituted are at a considerable distance from the place of their ordinary residence. Such impediments should be removed and the proceedings may be instituted in the local court where the person instituting the proceedings ordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 11. Following portion of the Parliamentary Debates as to Copyright Act has been relied upon : "Shri P. Trikamdas: Ordinarily it should fall within the jurisdiction of the court where the infringing copy was published. But there is nothing to prevent Parliament from making a law, as for instance in the case of divorce, and saying that the cause of action may also aris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus, `corporation' can be sued at a place having its sole or principal office and where cause of action wholly or in part, arises at a place where it has also a subordinate office at such place. 13. Learned author Mulla in the Code of Civil Procedure, 18 th Edn., has observed that under clauses (a) to (c) of section 20, plaintiff has a choice of forum to institute a suit. The intendment of the Explanation to section 20 of the Code of Civil Procedure is that once the corporation has a subordinate office in the place where the cause of action arises wholly or in part, it cannot be heard to say that it cannot be sued there because it did not carry on business at that place. The linking of the place with the cause of action in the Explanation where subordinate office of the corporation is situated is reflective of the intention of the Legislature and such a place has to be the place of the filing of the suit and not the principal place of business. Ordinarily the suit has to be filed at the place where there is principal place of business of the corporation. 14. `Corporation' in the Explanation would mean not only the statutory corporation but companies registered under the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business or personally works for gain de hors the fact that the cause of action has not arisen at a place where he/they are residing or any one of them is residing, carries on business or personally works for gain. However, this right to institute suit at such a place has to be read subject to certain restrictions, such as in case plaintiff is residing or carrying on business at a particular place/having its head office and at such place cause of action has also arisen wholly or in part, plaintiff cannot ignore such a place under the guise that he is carrying on business at other far flung places also. The very intendment of the insertion of provision in the Copyright Act and Trade Marks Act is the convenience of the plaintiff. The rule of convenience of the parties has been given a statutory expression in section 20 of the CPC as well. The interpretation of provisions has to be such which prevents the mischief of causing inconvenience to parties. 17. The intendment of the aforesaid provisions inserted in the Copyright Act and the Trade Marks Act is to provide a forum to the plaintiff where he is residing, carrying on business or personally works for gain. The object is to ensure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipal place of business/carries on business or personally works for gain at a place where cause of action has also arisen, suit should be filed at that place not at other places where plaintiff is having branch offices etc. 20. There is no doubt about it that the words used in section 62 of the Copyright Act and section 134 of the Trade Marks Act, `notwithstanding anything contained in CPC or any other law for the time being in force', emphasise that the requirement of section 20 of the CPC would not have to be complied with by the plaintiff if he resides or carries on business in the local limits of the court where he has filed the suit but, in our view, at the same time, as the provision providing for an additional forum, cannot be interpreted in the manner that it has authorised the plaintiff to institute a suit at a different place other than the place where he is ordinarily residing or having principal office and incidentally where the cause of action wholly or in part has also arisen. The impugned judgments, in our considered view, do not take away the additional forum and fundamental basis of conferring the right and advantage to the authors of the Copyright Act and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Bengal Immunity Co. v. State of Bihar [AIR 1955 SC 661] by S.R. DAS, CJI as follows: "It is a sound rule of construction of a statute firmly established in England as far back as 1584 when Heydon's case (supra) was decided that for the sure and true interpretation of all Statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: 1st - What was the common law before the making of the Act? 2nd - What was the mischief and defect for which the common law did not provide? 3rd - What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, and 4th - The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro private commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. [Bengal Immunity Co. v. State of Bihar (supra)]." 23. Considering the first aspect of aforesaid principle, the common la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... place, cause of action too has arisen. In the instant cases, the principal place of business is, admittedly, in Mumbai and the cause of action has also arisen in Mumbai. Thus, the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act cannot be interpreted in a manner so as to confer jurisdiction on the Delhi court in the aforesaid circumstances to entertain such suits. The Delhi court would have no territorial jurisdiction to entertain it. 24. The avoidance of counter mischief to the defendant is also necessary while giving the remedy to the plaintiff under the provisions in question. It was never visualised by the law makers that both the parties would be made to travel to a distant place in spite of the fact that the plaintiff has a remedy of suing at the place where the cause of action has arisen where he is having head office/carrying on business etc. The provisions of the Copyright Act and the Trade Marks Act provide for the authors/trade marks holders to sue at their ordinary residence or where they carry on their business. The said provisions of law never intended to be oppressive to the defendant. The Parliamentary Debate quoted above has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. There is no dispute with the aforesaid proposition. However, the object of the Act and the intention of the Legislature is clear which is to the otherwise. 27. Bennion on Statutory Interpretation in section 318 in Part XXI has mentioned that strict construction may be avoided or at least reduced by limiting the remedy where a counter mischief would arise if the remedy provided by the Act was eschewed widely. It may appear to the court that one of the opposing construction of the enactment, if adopted, would operate a mischief of its own. The prospects of this would constitute a negative factor in weighing the applicability of the construction in question. The court also has in mind the consequences for the public welfare. Bennion has discussed thus : "General presumption against `absurdity' For the general presumption that an `absurd' result is not intended, of which the present section depicts one aspect, see Code s.312. Mischief As to the `mischief' to which an enactment is directed see Code s.289. Counter-mischief Clearly it would be absurd to suppose that Parliament intended to abolish one mischief only at the cost of establishing another which is just as bad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant was unforeseen by Parliament and it is the court's duty to mitigate the counter mischief. 28. Strong reliance has been placed by the appellants on the discussions made by Bennion on avoiding disproportionate counter-mischief at page 1006 thus : "the Court seeks to avoid a construction that cures the mischief the enactment was designed to remedy only at the cost of setting up a disproportionate counter-mischief since this is unlikely to have been intended by Parliament. Sometimes there are overriding reasons for applying such a construction, for example, where the Parliament really intended it or a literal meaning is too strong." We find no overriding reasons to apply construction solicited by the appellants as that was never intended by the Parliament. 29. Bennion has also observed that public policy must inform the court's interpretation of the relevant statutory provision and that public policy ascertained from the Act of the Parliament. In our opinion, right to approach the court/pursuing the legal remedy cannot be made a farce or oppressive as that would not be conducive for the effective administration of justice. 30. Justice G.P. Singh in `Principles of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR 1993 SC 2529, p. 2535]. Having regard to the object of the U.P. Bhoodan Yagna Act, 1953 to implement the Bhoodan movement, which aimed at distribution of land to landless labourers who were versed in agriculture and who had no other means of subsistence, it was held that the expression 'landless persons' in section 14, which made provision for grant of land to landless persons, was limited to landless labourers as described above and did not include a landless businessman residing in a city. [U.P. Bhoodan Yagna Samiti v. Braj Kishore, AIR 1988 SC 2239]." 31. In Busching Schmitz Private Ltd. v. P.T. Menghani [1977 (2) SCC 835], it has been observed that purposive interpretation may be made having regard to the object of the provisions and to avoid any obvious lacuna. 32. The learned author Justice G.P. Singh in Interpretation of Statutes, 12th Edn. has also observed that it is the court's duty to avoid hardship, inconvenience, injustice, absurdity and anomaly while selecting out of different interpretations. The doctrine must be applied with great care and in case absurd inconvenience is to be caused that interpretation has to be avoided. Cases of individual hardsh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been used in the sense to which the argument points". [Vacher & Sons v. London Society of Compositors, (1913) AC 107]. According to BRETT, L.J., the inconvenience necessitating a departure from the ordinary sense of the words should not only be great but should also be what he calls an "absurd inconvenience". Moreover, individual cases of hardship or injustice have no bearing for rejecting the natural construction, [Young & Co. v. Leamington Spa Corporation, (1993) 8 AC 517], and it is only when the natural construction leads to some general hardship or injustice and some other construction is reasonably open that the natural construction may be departed from. It is often found that laws enacted for the general advantage do result in individual hardship; for example laws of Limitation, Registration, Attestation although enacted for the public benefit, may work injustice in particular cases but that is hardly any reason to depart from the normal rule to relieve the supposed hardship or injustice in such cases. [Lucy v. Henleys Telegraph Works, (1969) 3 All ER 456]. "It is the duty of all courts of justice", said LORD CAMPBELL, "to take care for the general good of the community, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enactments; the object, the purpose and the intention of the enactment is the same; it need not be expressed in any recital or preamble; and it is not competent for any court judicially to ascribe any part of the legal operation of the statute to inadvertence. [Kariapper v. Wijesinha, (1967) 3 All ER 485]. The Courts should as far as possible avoid a construction which results in anomalies. [N.T.Veluswami Thevar v. G.Raja Nainar, AIR 1959 SC 422]." 33. Bennion on `Statutory Interpretation' has mentioned law to same effect under section 312 and has observed that there is a presumption that absurd result is not intended and in section 314 it has been observed that the court has to avoid an inconvenient result while interpreting a provision. It was stated that it can be presumed that Parliament intends that while construing an enactment the court will avoid a construction that is unworkable or impracticable, inconvenient, anomalous or illogical as the same is unlikely to be intended by the Parliament. In Rosali V. v. Taico Bank and Ors. [2009 (17) SCC 690], this Court referring to Halsbury's Commonsense construction rule held that it is a well-settled principle of law that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Patel Roadways Ltd., Bombay v. Prasad Trading Co. etc. [1991 (4) SCC 270] in which this Court has considered the provisions of section 20 of the CPC. This Court has observed thus : "12. We would also like to add that the interpretation sought to be placed by the appellant on the provision in question renders the Explanation totally redundant. If the intention of the legislature was, as is said on their behalf, that a suit against a corporation could be instituted either at the place of its sole or principal office (whether or not the corporation carries on business at that place) or at any other place where the cause of action arises, the provisions of clauses (a), (b) and (c) together with the first part of the Explanation would have completely achieved the purpose. Indeed the effect would have been wider. The suit could have been instituted at the place of the principal office because of the situation of such office (whether or not any actual business was carried on there). Alternatively, a suit could have been instituted at the place where the cause of action arose under clause (c) (irrespective of whether the corporation had a subordinate office in such place or not). This wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be sued there because it does not carry on business at that place. It would be a great hardship if, in spite of the corporation having a subordinate office at the place where the cause of action arises (with which in all probability the plaintiff has had dealings), such plaintiff is to be compelled to travel to the place where the corporation has its principal place. That place should be convenient to the plaintiff; and since the corporation has an office at such place, it will also be under no disadvantage. Thus the Explanation provides an alternative locus for the corporation's place of business, not an additional one." This Court has considered while interpreting the provision of section 20 CPC that no practical or undue difficulties or disadvantage either to the plaintiff or the defendant corporation could be caused. It has also been observed that it would be a great hardship if in spite of the corporation having a subordinate office at a place where the cause of action arises, such plaintiff is compelled to travel where the corporation has its principal office. That place should be convenient to the plaintiff and the corporation has an office at such place, will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e" appearing in the Explanation and the word "or" which is disjunctive clearly suggest that if the case falls within the latter part of the Explanation it is not the court within whose jurisdiction the principal office of the defendant is situate but the court within whose jurisdiction it has a subordinate office which alone has the jurisdiction "in respect of any cause of action arising at any place where it has also a subordinate office". 38. In Exphar SA (supra), this Court had considered the provisions contained in section 62 of the Copyright Act and has observed that the word `include' shows that the jurisdiction for the purpose of section 62 is wider than that of the court as prescribed under the Code of Civil Procedure, 1908. This Court has laid down thus: "12. We would like to emphasise the word "include". This shows that the jurisdiction for the purposes of Section 62 is wider than that of the Court as prescribed under the Code of Civil Procedure, 1908. The relevant extract of the report of the Joint Committee published in the Gazette of India dated 23-11-1956 which preceded and laid the foundation for Section 62(2) said : "In the opinion of the Committee many aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In case the court is not having jurisdiction under one of the Acts, merely by combining the causes of action, the jurisdiction cannot be conferred upon the court. In that context, this Court has observed thus : "20. The jurisdiction of the District Court to determine a lis under the 1957 Act as also the 1958 Act must, thus, be instituted where the whole or a part of cause of action arises. Sub-section (2) of Section 62 of the 1957 Act provides for an additional forum therefore in the following terms: "(2) For the purpose 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 other 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." Admittedly, no such additional forum had been created in terms of the provisions of the 1958 Act. xxxxx 44. A cause of action in a give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by us does not militate against the observations made by this Court in Dhodha House (supra), the precise question which is before us, was not involved in the aforesaid case. A decision is not to be construed like a statute nor by inferential process it can be assumed that this Court has decided the question also which is before this Court in the instant cases. 40. This Court in Paragon Rubber Industries & Ors. v. Pragathi Rubber Mills & Ors. [2014 (57) PTC 1(SC)] held that a composite suit would not be maintainable unless the court had jurisdiction to entertain the suit in relation to both the Copyright Act and the Trade Marks Act. No such question is involved in the cases. 41. In Dabur India Ltd. (supra), the question was whether composite suit of infringement of copyright and passing off could be filed in a court having jurisdiction where the plaintiff actually and voluntarily resides or carries on business or personally works for gain as provided under section 62 of the Copyright Act. This Court answered the question in the negative, dismissed the appeal and held that Order 2 Rules 2 and 3 of the CPC can be exercised only in the event when the court has otherwise jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in Caterpillar Inc. v. Kailash Nichani (supra) has observed that section 62 of the Copyright Act makes a significant and obvious departure from the norm that the choice of jurisdiction should primarily be governed by convenience of the defendants. (c) In the decision in Intas Pharmaceuticals Ltd. (supra), Delhi High Court has considered the provisions of section 20 of the CPC and section 134 of the Trade Marks Act. The High Court has observed in para 17 of the report that the court has jurisdiction by virtue of the provisions contained in section 20(c) of the CPC as the defendant is selling the offending drug in Delhi. (d) In Ford Motor Co. & Anr. v. C.R. Borman & Anr. [2008 (38) PTC 76 (Del.)], Delhi High Court considered that the plaintiff carried on the business in commercial quantities in Delhi and have authorised agents also. The pleadings of plaintiff have to be taken into consideration at the time of rejection of the plaint under Order VII Rule 11 CPC. It was observed on averments made that the Delhi High Court possessed territorial jurisdiction to entertain the suit as plaintiff carried on business at Delhi. (e) In Sap Aktiengesellschaft & Anr. v. M/s. Wareho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 62 has not been questioned. There is no doubt about it that the challenge to the vires of section 62 has not been made. However, the question is that of interpretation and not that of vires of the provisions which has been considered by us. There will be no violence to section 62 of Copyright Act and section 134 of Trade Marks Act by the interpretation adopted by us and the right of the plaintiff which has been conferred under the provisions, also remains intact. There is no question of giving disadvantage to the plaintiff vis-a-vis the defendant but both will stand to gain by proper interpretation. 44. We also find the submission to be futile that the law as to the otherwise on the basis of aforesaid decisions, has prevailed for a long time as such there should not be any interference. Firstly, the judgments are of recent origin. Even otherwise, we have considered each and every decision threadbare which has been referred to us. It cannot be said that the precise question involved in the cases before us was involved in the aforesaid decisions or came up for consideration. In Dhodha House (supra) also, the question posed for consideration was different and the observations m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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