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TMI Blog2008 (2) TMI 857X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the suit is maintainable in this Court. In the present case, when an objection to jurisdiction was raised by way of demurrer and not at the trial, the objection must proceed on the basis that the facts as pleaded by the initiator of the impugned proceedings are true. The submission in order to succeed must show that granted those facts the Court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction, the learned single Judge ought to have taken allegations contained in the plaint to be correct. However, the learned single Judge examined the counter affidavit filed by the defendants in which it was claimed that the first plaintiff did not carry on business within the jurisdiction of the Madras High Court. In our opinion, the learned single Judge is clearly in error in going beyond the statements contained in the plaint. It has been repeatedly held by the Supreme Court in Exphar SA vs. Eupharma Laboratories Ltd. [ 2004 (2) TMI 652 - SUPREME COURT] that for the purpose of deciding an application under clauses (a) and (b) of Order VII Rule 11 of the C.P.C, the averments made in the plaint are germane; the pleas taken by the defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff acquired the trade mark Chandrika along with its goodwill, rights, interest and property under separate assignment deeds from M/s. S.V.Products and M/s. Lal Products and M/s. Chandrika Products and by virtue of the said assignments, the second plaintiff is the exclusive owner of the registered trade mark Chandrika . According to the plaintiffs, the trade mark Chandrika was conceived by one Kesavan Vaidiyar, who was trading under the trade name M/s. S.V. Products and he later obtained registration of the trade mark Chandrika in Registration No.177588 in Class-3 in respect of medicated and toilet soaps in the year 1956. In the year 1965, Kesavan Vaidiyar gave the concurrent rights to C.K. Manilal Trading as M/s. Lal Products and C.V. Revi Trading as M/s. Chandrika Products, both his immediate family members, to use trade mark Chandrika for soaps, in different geographical locations. Kesavan Vadiyar himself was trading as M/s. S.V. Products using the trade mark Chandrika during this period. According to the plaintiffs, after the second plaintiff got the deed of assignment, the second plaintiff has executed License User Agreement in favour of the first plaintiff granting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion 'actually and voluntarily resides or carries on business has to be meaningfully interpreted and would not cover a branch office carrying on business. It was further contended that the alleged infringed goods are not sold in Chennai and the plaintiffs have not obtained leave to sue under Clause 12 of the Letters Patent also and therefore, the High Court of Madras has no jurisdiction to entertain the suits. 7. The learned single Judge, inter alia, held that though Section 62(2) of the Copyright Act and Section 134(2) of the Trade Marks Act start with the non-obstante clause, the expression 'actually and voluntarily resides or carries on business or personally works for gain' is necessarily to be interpreted in the light of the explanation to Section 20 of the Code of Civil Procedure. Therefore, mere fact that the plaintiff's branch office is situated within the territorial jurisdictional limits of the Court is not sufficient to clothe the Court with the jurisdiction to entertain the suits. The learned single Judge also accepted the case of the defendants that no essential part of business of the defendant takes place in Chennai. The learned single Judge furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chennai is of no consequence and in any event, the first plaintiff is not carrying on any business in Chennai so as to invoke the jurisdiction of this Court under Section 62 of the Copyright Act or Section 134 of the Trade Marks Act. He submitted that the address of the branch office of the company does not find place in the plaintiffs' own website and the inclusion of Chennai address by the plaintiffs by way of clever drafting was only with a view to invoke the jurisdiction of this Court, which otherwise does not have jurisdiction. He submitted that the alleged infringed goods of the defendants are not sold in Chennai and therefore, no part of cause of action has arisen at Chennai and in any case, in the absence of the leave to sue, both the suits are liable to be rejected. 10. In order to appreciate the rival contentions raised by the learned counsel for the parties, it will be necessary to analyse the provisions of Clause 12 of the Letters Patent, Section 62 of the Copyright Act, 1957 and Section 134 of the Trade Marks Act, 1999. Clause 12 of the Letters Patent reads as hereunder : 12. Original Jurisdiction as to suits. And We do further ordain that the said High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. While it is the contention of the plaintiffs that they can institute a suit either in a court within whose local limits the principal place of business or its branch or branches where its business is carried on, is situate, the defendants submitted that it is the principal place of business that is material. According to the defendants, it is the only reasonable interpretation of Section 62(2) of the Copyright Act and Section 134(2) of the Trade Marks Act, and therefore, as the hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 authors are deterred from instituting infringement proceedings because the court in which such proceedings are to be instituted is situated at a considerable distance from the place of their ordinary residence. The Committee feels that this impediment should be removed and the new sub-clause (2) accordingly provides that infringement proceedings may be instituted in the District Court within the local limits of whose jurisdiction the person instituting the proceedings ordinarily resides, carries on business etc. It is, therefore, clear that the object and reason for the introduction of sub-section (2) of Section 62 was not to restrict the owners of the copyright to exercise their rights but to remove any impediment from their doing so. Section 62(2) cannot be read as limiting the jurisdiction of the District Court only to cases where the person instituting the suit or other proceeding, or where there are more than one such persons, any of them actually and voluntarily resi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ff need not take leave of the Court under Clause 12 of the Letters Patent even if only a part of the cause of action or no part of the cause of action arose within the jurisdiction of this Court, if the plaintiff ordinarily resides or carries on business within the jurisdiction of the Court. 15. In our opinion, the judgments relied on by the learned counsel for the defendants in Maya Appliances vs. M/s. Pigeon Appliances, and Laxmi Soap Factory v. Wipro Ltd. [supra] are based on complete misconstruction of Clause-12 of the Letters Patent. It has been held in these cases that since the defendants are carrying out businesses outside the jurisdiction of this court, prior leave to sue under Clause-12 of the Letters Patent ought to have been obtained. Under Clause-12 of the Letters Patent a suit can be filed in the High Court in its Original Side if at the time of commencement of an action, the defendant was carrying on business within its territorial limits. Similarly, when the cause of action has wholly or partly arisen within its territorial limits, the High Court has jurisdiction to try the suit notwithstanding the fact that the defendant does not carry on business within its ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ares that it would hold the field, notwithstanding anything contained in the CPC or any other law for the time being in force, the same cannot be annulled or rendered nugatory, by importing the requirements of Clause 12 of the Letters Patent into a case covered by Section 134(2) of the Trade Marks Act, 1999. The non abstante Clause automatically excludes the operation of the Letters Patent also, to a case covered by Section 134(2) of the Trade Marks Act, 1999. Therefore, in a case of infringement of a trade mark, covered by Section 134(2) of the Trade Marks Act, 1999, the question of the plaintiff taking prior leave of the Court, under Clause 12 of the Letters Patent, does not arise. In other words, in a suit for infringement covered by Section 134(2), a plaintiff need not take the leave of the Court under Clause 12 of the Letters Patent, even if only a part of the cause of action or no part of the cause of action, arose within the jurisdiction of this Court. ...................... ...................... ...................... 27. Moreover, the question of the plaintiff taking the prior leave of the Court under Clause 12 did not arise at all in this case, for one more r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e factual statement made by the respondents, the learned single Judge observed in para-42 thus: - For the purpose of carrying on business, mere location of branch office is not sufficient. It appears that no essential part of the business seems to have taken place in Chennai. The learned single Judge again in para-46 observed: - The learned counsel for the defendants has meticulously collected the first plaintiff's web site, Home Page and its address available from its Web site. The first plaintiff WIPRO LTD. has got its Corporate Office all over the country. It does not mean that the suit can be filed anywhere in the country on the premise that Branch Office is located. In Chennai alone, WIPRO Technologies has its office in various places. It appears several Branch Offices are located in and around Chennai. There is nothing to link Thiru.Vi.Ka.Industrial Estate to carry on business in respect of WIPRO Ayurvedic Soap. While number of offices of WIPRO Limited are located in and around Chennai, in the absence of acceptable evidence, it cannot be held that Thiru.Vi.Ka.Industrial Estate is the Branch Office associated with the business in respect of CHANDRIKA Ayurvedic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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