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TMI Blog2012 (5) TMI 780X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff. According to the plaintiff the defendants are using the impugned mark out of greed with a view to take advantage of the reputation and goodwill of the plaintiff. The defendant no.1 and 3 however filed a suit for declaration, injunction and damages under section 134(c) and 142 of the Trademarks Act against the plaintiff at Chitrakoot, U.P which is being contested by the plaintiff herein. 3. It is important here to give the sequence of events which has led the court to decide the matter at this stage. Vide orders dated 17th March, 2008 this Court framed issues arising out of the pleadings of the parties. Issue No. 1 which deals with the territorial jurisdiction of this Court was treated as a preliminary issue and counsel representing the parties had agreed that issue No.1 should be taken up first. Issue No. 1 is reproduced as under: - "1. Whether this court does not have territorial jurisdiction in respect of the present suit? OPD." On 31st October, 2008 learned counsel representing the plaintiff conceded that Section 134 of the Trade Marks Act, 1999 may not be applicable to determine the jurisdiction of this Court but yet stated that this Court has territorial jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff to lead evidence on the said issue the same cannot be decided based on the oral arguments. Counsel for the plaintiff also submitted that under Order 14 Rule 2 CPC this Court can dispose of the suit on the preliminary issue only when it is of the opinion that the case can be disposed of on an issue of law only and not on an issue, which is a mixed question of law and fact. Counsel for the plaintiff further submitted that for deciding the territorial jurisdiction, this Court has to only look at the averments made by the plaintiff in the plaint and nothing beyond that. The contention raised by the counsel for the plaintiff was that in a plaint if the plaintiff has made necessary averments clearly disclosing territorial jurisdiction of this Court, then this Court will not disbelieve the said averments to dismiss the present suit at the very threshold due to the lack of territorial jurisdiction. Elaborating his arguments, counsel submitted that in para 24 of the plaint the plaintiff has clearly averred that both the plaintiff and defendants are carrying on business in Delhi and that the defendants are committing the impugned acts of infringement and passing off within the jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh, learned counsel representing the defendants submitted that except the bald averments made by the plaintiff in para 24 of the plaint, no other material has been placed on record by the plaintiff to even prima facie show that this court has the territorial jurisdiction. Counsel also submitted that this Court has also treated the said issue of territorial jurisdiction as a preliminary issue and, therefore, the same can be decided by this Court taking into account the pleadings of the parties and documentary evidence placed on record by them. The contention raised by the counsel for the defendant was that no documentary evidence has been placed on record by the plaintiff to show that the defendant was engaged in carrying on its business in Delhi and in the absence of any such documentary evidence, the plaintiff will not be able to establish the territorial jurisdiction of this Court even in the trial. Counsel further submitted that this Court will not readily accept the existence of jurisdiction based on a bald averment made by the plaintiff unless the plaintiff is able to satisfy this Court as to how it has invoked the territorial jurisdiction of this Court. Counsel for the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h territorial jurisdiction: "That this Hon'ble Court has the territorial jurisdiction to try and adjudicate upon the present suit. Both the plaintiff and the defendants are carrying on business in Delhi. The defendants are committing the impugned acts of infringement and passing off within the jurisdiction of this Hon'ble Court by conducting business under the impugned trade mark in Delhi in a clandestine and surreptitious manner i.e. without issuing any formal invoices against sales. The plaintiff also filed and obtained registration of their trade mark in Delhi. The defendant no.1 also filed application for registration of impugned trade mark/label in Delhi on all India basis. This Hon'ble Court has jurisdiction under Section 134 of the Trade Marks Act, 1999 and Section 62 of Copyright Act, 1957 to entertain and adjudicate upon this suit." 8. The defendant on the other hand has contended that the plaintiff cannot invoke the jurisdiction of this court under Section 134 of the Trade Marks Act as the present suit is not a suit for infringement of trade mark as the registration of the plaintiff's trademark is for the states of Uttar Pradesh and Madhya Pradesh only. The defendant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly works for gain. Explanation. -For the purposes of sub-section (2), "person" includes the registered proprietor and the registered user. 62. 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 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." It is no more res integra that Section 134 of the Trade Marks Act which is similar in its sweep to Section 62 of the Copyright Act gives the plaintiff the advantage of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn the provisions of Section 20 of the CPC but providing an additional forum and a place for filing a suit in case of an infringement of a trademark. The Division Bench presided over by Dr. Mukundakam Sharma, J. (as his Lordship then was) has also opined that the words 'notwithstanding anything contained in the CPC' are indicative of the position that Section134 of the Trade Marks Act has to be read conjointly with and in addition to the provisions of Section 20 of the CPC. To those observations we may add that it is only in the event of a conflict between the provisions of Section 20 of the CPC and those of Section 134 of the Trade Marks Act that the latter would prevail. The effort of the Court must be, so far as is possible, not to curtail the role that can be played by either of the provisions acting conjointly or simultaneously. This Court in Intas had predicated its decision on the opinion of the Supreme Court in Dhodha House v. S.K. Maingi : 2006(32)PTC1(SC) in which it has been enunciated that Section 62(2) of the Copyright Act provides an additional forum to enable the holder of a copyright to file a suit at the place of his residence, thereby insulating him from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was that the new jurisdictional dispensation would favour multinational corporations as they would be able to initiate litigation according to their choice and secondly that a poor holder of a trademark will be at a disadvantage. In the context of the first Objection it was clarified that the new provisions would be to the advantage of the petty trader incidentally doing his trade on the basis of a registered trademark, and that if this purpose was not achieved, an amendment would be brought in. If the interpretation of Section 62 which we intend to impart, (which would also apply to Section 134 of the Trade Marks Act) is accepted, both these apprehensions would be addressed and resolved. Plainly, if the cause of action has arisen at a particular place where the plaintiff has its principal or subordinate office, and it is restricted to filing a case in that place alone, the Defendant would not be put to any unfair disadvantage. The intendement of Section 62 of the Copyright Act and Section 134 of the Trade Marks Act is to enable the plaintiff to initiate litigation at a forum convenient to it. It is not intended to allow the plaintiff to choose a territorial forum which is not co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CPC. The cause of action, therefore, permeates every sinew of the suit and all procedural provisions, which are but handmaidens of justice. 11. The intention of the legislature is evident, inter alia, in the non- obstante clause pertaining to the CPC. The word 'notwithstanding' in ordinary parlance means 'inspite of' or despite. (See Concise Oxford Dictionary as well as Black's Law Dictionary). This word does not indicate that the CPC has no role to play. In the factual matrix before us the word 'notwithstanding' connotes that in addition to Section 20 of the CPC, by virtue of Section 62(2) of the Copyright Act, the plaintiff is free to choose a forum convenient to it, that is, wherever it actually and voluntarily resides or carries on business or personally works for gain, provided the cause of action arises there. This is in contradistinction to that of the defendant as prescribed by Section 20 of the CPC. It is difficult for us to conceive of a situation where the ameliorative advantage bestowed on the plaintiff by virtue of Section 62 of the Trade Marks Act or Section 134 of the Trademarks Act could be frustrated if this interpretation is given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cause of action, substantially has not arisen. Section 20 of the CPC has been held to be by virtue of the non-obstante clause arising in section 134 to be all pervasive being the edifice of jurisdictional issue arising in any statute. The plaintiff in the case at hand has averred that he carries on business in Delhi and according to him, so does the defendant. The Hon'ble Apex Court in Dhodha House (supra) laid down as to what is to be construed by the expression "carries on business". It would be fruitful to reproduce the relevant paras of the said judgment as under: "40. The expression 'carries on business' and the expression 'personally works for gain' connotes two different meanings. For the purpose of carrying on business only presence of a man at a place is not necessary. Such business may be carried at a place through an agent or a manager or through a servant. The owner may not event visit that place. The phrase 'carries on business" at a certain place would, therefore, mean having an interest in a business at that place, a voice in what is done, a share in the gain or loss and some control thereover. The expression is much wider than what the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also payable there, a suit filed at place B where the insurance Co. had a branch office was held not maintainable. Where the plaintiff instituted a suit at Kozhikode alleging that its account with the defendant Bank at its Calcutta branch had been wrongly debited and it was claimed that that court had jurisdiction as the defendant had a branch there, it was held that the existence of a branch was not part of the cause of action and that the Kozhikode Court therefore had no jurisdiction. But when a company through incorporated outside India gets itself registered in India and does business in a place in India through its agent authorized to accept insurance proposals, and to pay claims, and to do other business incidental to the work of agency, the company carries on business at the place of business in India." Hence it is manifest that where only the goods are being sold would not mean that the plaintiff or the defendant carries on business at that place. In the case hand, the plaintiff has averred that the plaintiff as well as the defendant carries on business in Delhi, however no material has been placed on record by the plaintiff even to prima facie substantiate the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re are the alleged infringing goods being sold by the defendant in Delhi or anywhere else. In the documents, the plaintiff has placed on record the copy of the Partnership Deed, the registration certificate of its trademark, the packaging of its product and the alleged infringing copy of the defendant's product, copy of the legal notice issued by the plaintiff, copy of the plaint in O.S No.2/2006 filed by the defendants at Chitrakoot, Income Tax Returns and sale receipts of certain buyers within the territory of Mahoba, Uttar Pradesh. The plaintiff has not placed on record any invoice or receipt showing that it does business within the territory of Delhi. More so, the plaintiff has not placed on record any invoice indicating the fact that the defendants' infringing goods are sold within the territory of Delhi. In the absence of any material placed on record to substantiate its averments made in the plaint, the argument of the counsel for the plaintiff that the cause of action has arisen within the territorial jurisdiction of this court cannot be conceded to. Bald averments in the plaint, not based on any cogent material cannot form the basis to raise a presumption of jurisdiction b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing off is concerned the plaintiff has not placed on record any material to justify his apprehension that the defendants would pass off their goods as that of the plaintiff particularly in the light of the categorical submission of the counsel for the defendant that the defendants have no business operations whatsoever in Delhi. This Court also does not find force in the argument of the counsel for the plaintiff that in the suit for infringement filed by the defendant against the plaintiff herein at Chitrakoot,U.P the defendant has itself stated that the defendant does business on all India basis and thus would include the territory of Delhi as the argument is rather far fetched so as to read into a general statement to be a particular admission. It is also pertinent to mention here that the plaintiff herein had moved an application for amending para 24 of the plaint relating to territorial jurisdiction reproduced herein above so as to include the said pleading, but the said application was dismissed by this court vide orders dated 3.2.2011. The judgments cited by the counsel for the plaintiff in this regard will not be applicable to the facts of the case at hand as the same reite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue." Before the amendment to the said provision by the Amendment Act of 1976 the categorization of cases was only in relation to the issues of law and issues of fact and it was mandatory for the court to try the issues of law in the first instance and to postpone the settlement of issues of fact until after the issues of law had been determined. However after the said amendment, rule 1 makes it obligatory on the court to pronounce judgment on all issues subject to the provision of sub rule 2 which gives discretion to the court to frame issue of law only if it relates to the jurisdiction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se-law on the point, we are of opinion that under Order 14 Rule 2 C. P. Code, an issue relating to jurisdiction of the Court can be tried as a preliminary issue only if it can be disposed of without recording any evidence. If the issue about jurisdiction is a mixed question of law and fact requiring recording of evidence, the same cannot be tried as a preliminary issue." Hence, in the case at hand the issue of jurisdiction is a pure question of law and thus can be decided as a preliminary issue. The question whether this court has the territorial jurisdiction to try the present suit can be determined by looking at the averments in the plaint and does not need recording of any evidence. The purpose of adducing evidence is to corroborate the averments made in the plaint and not to supplant or add any new ground for conferring jurisdiction on a court which it otherwise does not have. The question of jurisdiction in the present case goes to the root of the matter and thus has to be decided as a preliminary issue. Ingeminating what has been held in the preceding paragraphs, the bald averments made in the plaint would not require adducing any evidence as they are nothing but hollow ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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