9911796707
TMI Blog2016 (1) TMI 1489X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the plaint itself it becomes clear that the plaintiff carries on business at, inter alia, Deogarh. The appellant / plaintiff carries on business in Deogarh, Jharkhand. It may also carry on business at Delhi. But, because the cause of action has allegedly arisen in Deogarh, Jharkhand, and not in Delhi, the appellant/plaintiff cannot sue the defendants/respondents in Delhi - this court does not have the territorial jurisdiction to entertain the suit. And, on this count, the decision of the learned single judge cannot be faulted. But, the suit ought not to have been dismissed. As this court did not have jurisdiction, the plaint ought to have been returned under order 7 rule 10 CPC. Only to that extent, the learned single judge had erred. The dismissal of the suit is set aside. Since this court does not have the territorial jurisdiction to entertain the suit, the plaint is directed to be returned to the appellant/plaintiff for presentation before the proper court - Appeal disposed off. - FAO (OS) 494/2015 & CM 17816/2015 - - - Dated:- 20-1-2016 - Badar Durrez Ahmed and Sanjeev Sachdeva, JJ. For the Appellant: Rakesh Kumar and Bipin Kumar For the Respondent: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfusion in the mind of general public who will start considering this project as an extension of plaintiff's earlier project AMRAPALI GREEN. The plaintiff's has long back presence in the town of Deogarh (Jharkhand) where the defendants have launched the impugned project AMBAPALI GREEN. The plaintiff has its hotel in Deogarh which is operational and running in profit and plaintiff's trademark has been known to the local residents and tourists who throng to that place for worship. It is pertinent to mention here that plaintiff's project Amrapali Green is a successful group housing residential complex having sprawling ambience and consisting of approximately 354 flats/apartments of varying sizes in Indira Puram, Ghaziabad. The project has already been completed in 2008 and possession has been handed over to the respective customers. The launch of impugned project is a calculated move of defendants to injure the plaintiff in his trade or business by unfair competition. By launching project of deceptively similar name, the defendants have made false representation to prospective customers about his business to pass off its goods as the goods of plaintiff. The impugned pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a share in the profits and losses in the hotel which is being run along with the Clark-Inn Hotel Group at the Deogarh, Jharkhand. Once that is so, there is a running business and plaintiff is therefore carrying on business at Deogarh, Jharkhand, and consequently the ratio of the judgement in the case of Indian performing rights Society Ltd. (supra) applies and hence this court would not have territorial jurisdiction. 5. The learned counsel for the appellant / plaintiff submitted that the learned single judge had not correctly appreciated the finding and the ratio of the decision of the Supreme Court in the case of Sanjay Dalia (supra). It was contended that the Supreme Court did not hold that the jurisdiction of the court where the principal place of business or the registered office of the proprietor of the registered trademark and that of the copyright was situated would be ousted if the cause of action had arisen at another place where the plaintiff also had some activities. It was contended that the learned single judge erred in dismissing the suit of the plaintiff/appellant and in holding that this court did not have territorial jurisdiction although the registered office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... einafter referred to as 'the code'), the Trade Marks Act, 1999 and the Copyright Act, 1957. They are as under:- Section 20 of the Code of Civil Procedure, 1908: 20. Other suits to be instituted where defendants reside or cause of action arises.--Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction- (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the 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 actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fendant could be sued inter alia where the defendant carried on business. If the defendant was a corporation (which expression includes a company), by virtue of the explanation after clause (c), it would be deemed to carry on business:- (1) if it had a sole office in India then at the place of the sole office; (2) if it had a principal office at one place as well as a subordinate office at another place then:- (i) in case the cause of action arose at the place of the subordinate place, at that place; or (ii) in case no part of the cause of action arose at the place of the subordinate office, at the place of the principal office. 9. This position was explained in Patel Roadways Ltd. v. Prasad Trading Co.: MANU/SC/0280/1992 : (1991) 4 SCC 270, as follows:- 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff has a choice of forum and cannot be compelled to go to the place of residence or business of the corporation and can file a suit at a place where the cause of action arises. If a corporation desires to be protected from being dragged into litigation at some place merely because a cause of action arises there it can save itself from such a situation by an exclusion clause as has been done in the present case. The clear intendment of the Explanation, however, is that, where the corporation has a subordinate office in the place where the cause of action arises, it cannot be heard to say that it 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 . 11. Section 20, before the amendment of CPC in 1976, had two Explanations being Explanations I and II. By the Amendment Act, Explanation I was omitted and Explanation II was renumbered as the present Explanation. Explanation which was omitted reads as follows: Explanation I.--Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence. 12. This Explanation dealt with the case of place of residence of the defendant and provided with regard to a person having a permanent dwelling at one place and also temporary at another place, that such person shall be deemed to reside at both places in respect of any cause of action arising at the place where he has such temporary residence. The language used in Explanation II, on the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Trade Marks Act, an additional forum has been provided by including a District Court within whose limits the plaintiff actually and voluntarily resides or carries on business or personally works for gain. The object of the provisions was to enable the plaintiff to institute a suit at a place where he or they resided or carried on business, not to enable them to drag the defendant further away from such a place also as is being done in the instant cases. In our opinion, the expression notwithstanding anything contained in the Code of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at such place cause of action has also arisen wholly or in part, the 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 the Trade Marks Act is the convenience of the plaintiff. The rule of convenience of the parties has been given a statutoryexpression in Section 20 CPC as well. The interpretation of provisions has to be such which prevents the mischief of causing inconvenience to the parties. 19. 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 that the plaintiff is not deterred from instituting infringement proceedings because the court in which proceedings are to be instituted is at a considerable distance from the place of their ordinary residence . The impediment created to the plaintiff by Section 20 CPC of going to a place where it was not having ordinary residence or principal place of business was sought to be removed by virtue of the aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or any other law for the time being in force , emphasise that the requirement of Section 20 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 Trade Marks Act provided under the aforesaid provisions. xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx xxxx 52. In our opinion, the provisions of Section 62 of the Copyright Act and Section 134 of the Trade Marks Act have to be interpreted in the purposive manner. No doubt about it that a suit can be filed by the plaintiff at a place where he is residing or carrying on business or personall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncipal office and not at the place of the subordinate office. And, consequently, it could institute a suit at the place of its principal office but not at the place of its subordinate office. All these four cases are set out in the table below for greater clarity: S.No . Place of Plaintiff s Principal Office(Sole office ins.no.1) Place of Plaintiff s Subordinate/Branch Office Place where cause of action arose Place where Plaintiff can additionally sue under section 134(2) and section 62(2) 1 A -- C A 2 A B A A 3 A B B B 4 A B C A 14. The present case falls under S. No. 3 in the above table. The appellant / plaintiff has its principal office in Delhi (place A). Its subordinate office is at Deogarh, Jharkhand (place B) where it r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes clear that the plaintiff carries on business at, inter alia, Deogarh. In Dhodha House (supra) itself it was observed as follows: 46. The expression carries on business and the expression personally works for gain connote 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 on at a place through an agent or a manager or through a servant. The owner may not even 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.. (underlining added) 17. The appellant / plaintiff has a clear and admitted interest in the business of its hotel - Amrapali Clarks Inn - at Deogarh. On the basis of the averments in the plaint, the plaintiff carries on business through the said hotel at Deogarh. To recapitulate, the plaintiff had stated the following in paragraph 39 of the plaint: The plaintiff's has long back presence in the town of Deogarh (Jharkhand) where the defendants have launched the impugned project AMB ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
