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TMI Blog2016 (1) TMI 952X X X X Extracts X X X X X X X X Extracts X X X X ..... e defendants in CS(COMM) No.54/2015 are situated, as per the address contained in the memo of parties, at Bengaluru in Karnataka. 2. In both the suits, territorial jurisdiction of this Court is claimed on the basis of plaintiff's carrying on business in Delhi because plaintiff is selling its services in Delhi through the internet. The trade mark and the service mark of the plaintiff is 'BOOKMYSHOW.COM'. The relevant para of the plaint with respect to the existence of territorial jurisdiction of this Court is para 34 of the plaint and this para 34 reads as under:- "34. This Hon'ble Court also has jurisdiction to entertain and try the present suit under section 134(2) of the Trade Marks Act, 1999 on account of the fact that the Plaintiff carries on business within the jurisdiction of the Hon'ble Court. The Plaintiff's ticketing services are availed by consumers in Delhi, for events, performances and shows held in Delhi. Contracts and/or transactions are entered into between the Plaintiff and its customers, which are being concluded in Delhi. Therefore the essential part of the business of the Plaintiff, insofar as its transactions with customers in Delhi are concerned, takes pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case that it has an office in Delhi. The question then arises as to whether the third condition specified in Dhodha House (supra) is satisfied or not. If we recall, in Dhodha House (supra), the Supreme Court had observed that the expression 'carries on business', as appearing in the above two provisions, is much wider than what the expression in normal parlance connotes because of the ambit of a civil action within the meaning of Section 9 of the CPC. The Supreme Court, however, cautioned that although the expression has a very wide meaning, it is necessary that the three conditions specified in the said decision should be satisfied. 18. Insofar as the first two conditions are concerned, they relate to agents. Inasmuch as it is an admitted position that the appellant/ plaintiff has no agent in Delhi, those two conditions are clearly not fulfilled. However, it is the appellant/ plaintiff's case that it carries on business in Delhi directly inasmuch as its goods and services are sold to consumers in Delhi through its website which is accessed in Delhi. It is on this basis that the learned counsel for the appellant/ plaintiff submitted that the decision in Dhodha House (supra) as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi. This is apart from the fact that the appellant/ plaintiff may also have been regarded as having voluntarily resided in Delhi. When the shop in the 'physical sense' is replaced by the 'virtual' shop because of the advancement of technology, in our view, it cannot be said that the appellant/ plaintiff would not carry on business in Delhi." 4. No doubt, the judgment of the Division Bench holds that where internet transactions take place, there would be territorial jurisdiction at the place where internet transaction is done by accessing the website, however, the Division Bench in the judgment in the case of World Wrestling Entertainment (supra) does not deal with the situation qua internet transactions as to when the plaintiff is a corporation viz a company registered under the Companies Act, 1956 and whether there is 'carrying on business' even if the plaintiff company has no office at the place where the plaintiff's website is accessed for carrying out the transactions. The issue which is before this Court in the subject suits is as to what is the meaning of the expression 'carrying on business' in Section 134 of the Trade Marks Act, 1999 and which is also an expression as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or in part arose in Bombay. Consequently Clause (c) is not attracted to the facts of these cases. What has been urged with the aid of the Explanation to Section 20 of the Code is that since the appellant has its principal office in Bombay it shall be deemed to carry on business at Bombay and consequently the courts at Bombay will also have jurisdiction. On a plain reading of the Explanation to Section 20 of the Code we find an apparent fallacy in the aforesaid argument. The Explanation is in two parts, one before the word "or" occurring between the words "office in India" and the words "in respect of" and the other thereafter. The Explanation applies to a defendant which is a corporation which term, as seen above, would include even a company such as the appellant in the instant case. The first part of the Explanation applies only to such a corporation which has its sole or principal office at a particular place. In that event the courts within whose jurisdiction the sole or principal office of the defendant is situate will also have jurisdiction inasmuch as even if the defendant may not be actually carrying on business at that place, it will "be deemed to carry on business" at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... together of the place where the cause of action arises with the place where a subordinate office is located clearly shows that the intention of the legislature was that, in the case of a corporation, for the purposes of Clause (a), the location of the subordinate office, within the local limits of which a cause of, action arises, is to be the relevant place for the filing of a suit and not the principal place of business. If the intention was that the location of the sole or principal office as well as the location of the subordinate office (within the limits of which a cause of action arises) are to be deemed to be places where the corporation is deemed to be carrying on business, the disjunctive "or" will not be there. Instead, the second part of the explanation, would have read ' and, in respect of any cause of action arising at any place where it has a subordinate office, also at such place". (underlining and emphasis is mine) 6. A reference to para 12 of the judgment in Patel Roadways Limited's case (supra), especially the italics portion as given by the Supreme Court itself, shows that the Supreme Court has held that where the suit is filed against a company, carrying o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Procedure" does not oust the applicability of the provisions of Section 20 of the Code of Civil Procedure and it is clear that additional remedy has been provided to the Plaintiff so as to file a suit where he is residing or carrying on business etc., as the case may be. Section 20 of the Code of Civil Procedure enables a Plaintiff to file a suit where the Defendant resides or where cause of action arose. Section 20(a) and Section 20(b) usually provides the venue where the Defendant or any of them resides, carries on business or personally works for gain. Section 20(c) of the Code of Civil Procedure enables a Plaintiff to institute a suit where the cause of action wholly or in part, arises. The Explanation to Section 20 Code of Civil Procedure has been added to the effect that 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 subordinate office at such place. Thus, '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. 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y works for gain, the suit can be filed at such place/s. Plaintiff (s) can also institute a suit at a place where he is residing, carrying on 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 Code of Civil Procedure as well. The interpretation of provisions has to be such which prevents the mischief of causing inconvenience to parties. 19. The intendment of the aforesaid provisions inserted in the Copyright A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany at a particular place such as Delhi where the present suit is filed, but on the different ground that it is the impugned activities of the defendants which are taking place at Delhi and therefore part of cause of action arises at Delhi, then, in such a case Delhi could have territorial jurisdiction, but, as stated above by the counsel for the plaintiff, plaintiff only wants to place reliance upon the ratio of the judgment in the case of World Wrestling Entertainment (supra) with respect to arising of cause of action qua internet transactions qua the plaintiff carrying on business and not impugned activities of the defendants, and hence, the judgment in the case of World Wrestling Entertainment (supra) relied upon does not apply because this judgment does not deal with and pronounce upon the issue as to Delhi having jurisdiction although the plaintiff is a company and such a plaintiff/Company neither has a principal office nor a head office nor a registered office nor a branch office at Delhi. 9(i) Finally, I would like to note that no doubt law entitles a plaintiff to file a suit where a cause of action arises in whole or in part in Delhi and even if neither the plaintiff no ..... 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