I.A No. 6059/2007

1. This application has been made under Order 7 Rule 11, CPC for rejection of the plaint on the ground that this Court has no territorial jurisdiction to entertain the suit and the plaint was liable to be rejected/returned.

2. In reply to the application, the plaintiff has denied that this Court had no territorial jurisdiction and submitted that the Dhodha House judgment relied upon by the defendant was not applicable.

3. The suit has been filed by the plaintiff for injunction and damages for infringement of trade mark, copyright and passing off seeking relief that this Court should issue a decree of permanent injunction against the defendant from using the trade mark ‘5000’ or ‘PRESIDENT 5000’ which was deceptively similar to the plaintiff's trade mark ‘HAYWARDS 5000 SUPER STRONG BEER’ in respect of its goods. Prayer was also made that the defendant be directed to hand over all goods, packaging material connected with the trade marks ‘5000’ and/or ‘PRESIDENT 5000’ and recall all products bearing the trade mark and deliver to the plaintiff's attorney for destruction.

4. Under the Trade Marks Act, Section 134 governs the issue of jurisdiction and reads as under:

“(1) No suit—

(a) for the infringement of a registered trade mark; or

(b) relating to any right in a registered trade mark; or

(c) for passing off arising out of the use by the defendant of any trade mark which is identical with or deceptively similar to the plaintiff's trade mark, 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 proceedings, 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.”

5. A perusal of this provision would show that in order to invoke the jurisdiction for infringement of trade mark relating to any right in a registered trade mark the person instituting the suit or the proceeding should actually and voluntarily reside or personally work for gain within the jurisdiction of that Court.

6. It is not disputed in this case that the defendant is doing no business in Delhi and defendant's address given in the plaint is of Madhya Pradesh. The plaintiff has given its addresses of Calcutta and Mumbai. While giving Calcutta address plaintiff has stated ‘also at 805-806, Ansal Bhawan, 16 Kasturba Gandhi Marg, New Delhi’. The title of the plaintiff plaint shows that the registered office of plaintiff company was at Calcutta and business office seems to be at Mumbai. No where it is stated in the plaint that the plaintiff has any office/branch office in Delhi or it was carrying on its business in Delhi through any branch office. Jurisdiction of this Court has been invoked in terms of paragraph 28 of the plaint which reads as under:

“This Hon'ble Court has the territorial jurisdiction to try and entertain the present suit by virtue of the fact that the plaintiffs' goods manufactured under the trade mark ‘HAYWARDS 5000 SUPER STRONG BEER’ are sold and offered for sale at their various outlets in New Delhi and even otherwise, within the jurisdiction of this Hon'ble Court. The plaintiffs thus carry on the business within the jurisdiction of this Hon'ble Court. By virtue of the aforesaid and by virtue of Section 134(2) of the Trade Marks Act, 1999 and by virtue of Section 62(2) of the Copyright Act, 1994, this Hon'ble Court has the territorial jurisdiction to try and entertain the present suit.”

7. The plea of the plaintiff is that since the goods of the plaintiff were sold and offered for sale at various outlets at Delhi, this Court has jurisdiction. During arguments Counsel for the plaintiff submitted that the plaintiff during evidence would show that defendant's goods were being sold in Delhi.

8. It is settled law that while considering application under Order 7 Rule 11, CPC the Court has to look into the averments made in the plaint alone and they are assumed to be correct. It is not permissible to look into the plea raised in the written statement or to any peace of evidence. In Ramesh B. Desai v. Bipin Vadilal Mehta, 2006 (7) SCALE, the Supreme Court observed as under:

“The principle underlying Clause (d) of Order 7 Rule 11 is no different. We will refer here to a recent decision of this Court rendered in Popat and Kotecha Property v. State Bank of India Staff Association, (2005) 7 SCC 510 where it was held as under in para 10 of the report—

‘10. Clause (d) of Order 7 Rule 7 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11, CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.’

It was emphasized in para 25 of the reports that the statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11, CPC. The principle is, therefore, well settled that in order to examine whether the plaint is barred by any law, as contemplated by Sub-rule (d) of Order 7 Rule 11, CPC, the averments made in the plaint alone have to be seen and they have to be assumed to be correct. It is not permissible to look into the pleas raised in the written statement or to any piece of evidence. Applying the said principle, the plea raised by the contesting respondents that the Company Petition was barred by limitation has to be examined by looking into the averments made in the Company Petition alone and any affidavit filed in reply to the Company Petition or the contents of the affidavit filed in support of Company Application No. 113 of 1995 filed by the respondents seeking dismissal of the Company Petition cannot at all be looked into.”

9. The plaintiff has not made any averment that the defendant was doing business within the jurisdiction of this Court. Plaintiff has not made any averment that plaintiff was carrying on business in Delhi. The only averment made is that the plaintiff's goods were being sold in Delhi.

10. The aspect of ‘working for gain’ as provided under Section 134 of Trade Marks Act was considered by the Supreme Court in Dhodha House v. S.K Maingi., 20061 AD, and the Supreme Court observed as under:

“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 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. The expression 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 Code. But it is necessary that the following three conditions should be satisfied, namely—

‘(1) The agent must be a special agent who attends exclusively to the business of the principal and carries it on in the name of the principal and not a general agent who does business for any one that pays him. Thus, a trade in the Mufassil who habitually sends grain to Madras for sale by a firm of commission agents who have an independent business of selling goods for others on commission, cannot be said to ‘carry on business’ in Madras. So a firm in England, carrying on business in the name of A.B and Co., which employs upon the visual terms a Bombay firm carrying on business in the name of CD. and Co., to act as the English firm's commission agents in Bombay, does not ‘carry on business’ in Bombay so as to render itself liable to be sued in Bombay.

(2) The person acting as agent must be an agent in the strict sense of the term. The manager of a joint Hindu family is not an ‘agent’ within the meaning of this condition.

(3) To constitute ‘carrying on business’ at a certain place, the essential part of the business must take place in that place. Therefore, a retail dealer who sells goods in the mufassil cannot be said to ‘carry on business’ in Bombay merely because he has an agent in Bombay to import and purchase his stock for him. He cannot be said to carry on business in Bombay unless his agent made sales there on his behalf. A Calcutta firm that employs an agent at Amritsar who has no power to receive money or to enter into contracts, but only collects orders which are forwarded to and dealt with in Calcutta, cannot be said to do business in Amritsar. But a Bombay firm that has a branch office at Amritsar, where orders are received subject to confirmation by the head office at Bombay, and where money is paid and disbursed, is carrying on business at Amritsar and is liable to be sued at Amritsar. Similarly a Life Assurance Company which carries on business in Bombay and employs an agent at Madras who acts merely as a Post Office forwarding proposals and sending moneys cannot be said to do business in Madras. Where a contract of insurance was made at place A and the insurance amount was also payable there, a suit filed at place B where the Insurance Company 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 carried on business at the place of business in India.’

A corporation in view of Explanation appended to Section 20 of the Code would be deemed to be carrying on business interalia at a place where it has a subordinate office. Only because, its goods are being sold at a place would thus evidently not mean that it carries a business at that place.”

11. It is apparent from the law laid down by the Supreme Court that only if the goods of a company are sold at a place would not mean that company carries own the business at that place. By giving an address within the jurisdiction of this Court without specifying as to what the address was about, does not entitle a company to file the suit within the jurisdiction of this Court. The plaintiff company is having registered office at Calcutta and the other office at Mumbai, and the defendant is situated in Madhya Pradesh, I find no reason why the jurisdiction has been invoked of Delhi High Court when no cause of action arose in Delhi. During arguments Counsel for plaintiff stated that the defendant had filed a caveat in the Delhi High Court, though this caveat had exhausted before filing the suit, but that shows that defendant submitted to the jurisdiction of this Court. I consider that this argument is fallacious. When a Court had no jurisdiction at all in the matter, by consent the parties cannot confer jurisdiction. Only that Court would have jurisdiction which according to law has jurisdiction. If two Courts have jurisdiction as per law, then only the parties have liberty to choose one of the two Courts by mutual consent.

12. I find that this Court has no territorial jurisdiction to entertain the suit. The plaint is hereby directed to be returned to the plaintiff for filing before the Court of appropriate jurisdiction.

13. With the above directions, the application and suit stand disposed of.

Application & Suit disposed of.