Guiness World Records Limited vs Sababbi Mangal
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.1180/2011 & connected matters
% 15th February, 2016
1. CS(OS) No.1180/2011
GUINESS WORLD RECORDS LIMITED ..... Plaintiff
Through: Ms. Kripa Pandit, Advocate with Mr.
Chander M. Lall, Advocate.
versus
SABABBI MANGAL ..... Defendant
Through: Mr. Pankaj Agarwal, Advocate.
2. CS(OS) No.1438/2009
THE ECONOMIST NEWSPAPER LIMITED ..... Plaintiff
Through: Mr. Manav Kumar, Advocate.
versus
MR. SHIV HARIT ..... Defendant
Through:
3. CS(OS) No.2599/2010
PEPSICO, INC AND ORS. ..... Plaintiffs
Through: Mr. Dheeraj Nair, Advocate with Mr.
Kunal Mimani, Advocate.
versus
DUGAR SPICES AND EATABLES (P) LTD. AND ORS. ..... Defendants
Through:
CS(OS) No.550/2008 & conn. matters Page 1 of 15
4. CS(OS) No.2903/2012
DHANANJAY K THECKEDATH AND ANR. ..... Plaintiffs
Through: Ms. Sarita Rout, Advocate.
versus
SANJAY SHARMA AND ANR. ..... Defendants
Through: Mr. Umesh Mishra, Advocate.
5. TR. P. (C) No.1/2016
M/S NAV JAGRITI NIKETAN EDUCATION SOCIETY ..... Petitioner
Through: Mr. S. K. Bansal, Advocate with Mr.
Ajay Amitabh Suman, Advocate.
versus
DELHI INTERNATIONAL SCHOOL AND OTHERS .....Respondents
Through: Mr. Shailen Bhatia, Advocate with Mr. Arun Kumar Jha, Advocate.
Mr. Aman Sinha, Advocate with Mr. Sanjai Pathak, Advocate and Mr. Pravesh Thakur, Advocate for respondent No.2.
6. CS(OS) No.865/2012 GODFREY PHILLIPS INDIA LTD ..... Plaintiff Through: Ms. Namrita Kochhar, Advocate.
versus DHARAMPAL SATYAPAL LTD AND ANR. ..... Defendants Through: Mr. Bishwajit Dubey, Advocate with Ms. Surabhi Khattar, Advocate.
7. CS(OS) No.2342/2010
MUZAMMIL REHMAN ..... Plaintiff
Through: Mr. S. K. Bansal, Advocate with Mr.
Ajay Amitabh Suman, Advocate.
versus
M/S J WALTER THOMPSON COMPANY LIMITED (J.W.T) AND OTHERS ..... Defendants Through: Mr. Prashant Mehra, Advocate for defendant No.1.
Mr. Ankur Gupta, Advocate for defendant No.2.
Mr. Pravin Anand, Advocate with Ms. Vaishali Mittal, Advocate and Ms. Prachi Agarwal, Advocate for defendant No.3.
8. CS(OS) No.550/2008
MARICO LTD. ..... Plaintiff
Through: Mr. Zeeshan Khan, Advocate.
versus
DIVINE PHARMACEUTICALS ..... Defendant
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? Yes
VALMIKI J. MEHTA, J (ORAL)
CS(OS) Nos. 1180/2011, 1438/2009, 2599/2010, 2903/2012, 865/2012, 2342/2010 & 550/2008
1. Irrespective of the reason why each individual suit or transfer petition or pending amendment application seeking enhancement of pecuniary jurisdiction is listed before this Court, the issue to be decided by this Court is the interpretation of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (in short the Act of 2015) when it uses the expression "filed or pending" in the first proviso of Section 7 thereof. The issue is that whether the expression "filed or pending" means that this Court will entertain all pending matters even though this Court does not have pecuniary jurisdiction to entertain the suit.
2. The Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Ordinance, 2015 (Ordinance, 2015) came into effect from 23.10.2015. Section 7 and the first proviso to Section 7 of the Ordinance, 2015 read as under:
"All suits and applications relating to commercial disputes of a Specified Value filed in a High Court having ordinary original civil jurisdiction shall be heard and disposed of by the Commercial Division of that High Court:
PROVIDED that all suits and applications relating to commercial disputes, stipulated by an Act to lie in a court not inferior to a District Court, and filed on the original side of the High Court, shall be heard and disposed of by the Commercial Division of the High Court:" (underlining added)
3. The first proviso of Section 7 of the Ordinance, 2015 stated that the suits and applications relating to commercial disputes stipulated by a statute lie in a court not inferior to a District Court and filed on the original side of the High Court shall be heard and disposed by the Commercial Division of the High Court. The words "and filed" used in the first proviso to Section 7 of the Ordinance, 2015 did refer to the cases which were filed in the High Court to be heard and disposed of by the High Court and which words in one manner can lead to the interpretation that as long as it was originally filed in the High Court, irrespective of the pecuniary jurisdiction of this pending suit not being of the specified value, High Court in its Commercial Division would, still continue to hear and dispose of the suit. However, equally another interpretation of the words 'and filed' could also be that if the suit was filed in the High Court, the High Court could only continue to hear and dispose of the suit if the High Court continued to have pecuniary jurisdiction i.e the suit had to be of a specified value as stated in the Ordinance, 2015. Therefore, possibly something was left unsaid by the legislature when it used the words "and filed" if these words were intended to continue to vest a Commercial Division of the High Court to try and dispose of the suit originally filed in the High Court although subsequently the High Court would not have pecuniary jurisdiction to try the matter including for the reason that the pecuniary jurisdiction of the suit was below the threshold limit of rupees one crore as required by the Ordinance, 2015.
4. On account of possibility of different interpretation of the words "and filed" found in the first proviso to Section 7 of the Ordinance, 2015, the appropriate authorities and the legislature moved in. This happened by two things. Firstly, the Government of India Cabinet, Press Information Bureau, issued a Press Note on 16.12.2015, i.e after passing of the Ordinance, 2015 and before passing of the Act of 2015 which succeeded the Ordinance, and in this Press Note which was issued it was made clear that the amendment was required to the first proviso to Section 7 of the Ordinance, 2015 so that there is no doubt remaining therein that the said first proviso to Section 7 will also apply to "pending cases" i.e the words used in the first proviso of Section 7 in the Ordinance 2015 being "and filed" were to be construed to be applicable even for the pending cases.
5. No doubt only a Press Note issued by the Press Information Bureau, Government of India, Ministry of Law and Justice stating that the amendment would be made to the first proviso toSection 7 of the Ordinance, 2015, may not have been of conclusive help, however, the issue has become further simple with respect to the interpretation of the expression "filed or pending" as found in the Act of 2015 because of the 78th Report submitted to the Rajya Sabha by the Department-Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice. This report contained the reasons for bringing in various provisions of the Act of 2015, and more importantly and particularly the reason for changing the words "and filed" found in the first proviso to Section 7 of the Ordinance 2015 to the expression " and filed or pending" as found in the Act of 2015. The relevant para of this 78th Report containing the observations and recommendations of the Standing Committee is para 34 which reads as under:
"34. The Committee feels that the transfer of all pending commercial disputes to the proposed Commercial Court/Division may overburden the said courts and defeat the very purpose of establishing them. There may not be requirement of Commercial Courts in some States as they have limited number of such cases. The Committee recommends that instead of transferring the pending cases to Commercial Courts, a sunset clause may be inserted in the Bill whereby only fresh cases with a pecuniary limit may be transferred to Commercial Courts. However, the litigants may be given a choice to move Commercial Courts if the pending dispute is of commercial nature as per the Schedule of the Bill" (underlining added)
6. The underlined portion of para 34 of the report of the Standing Committee leaves no manner of doubt that there was to be a sunset clause whereby only fresh cases having the pecuniary limit were filed before the Commercial Divisions and so far as the pending cases were concerned, thesame were not to be transferred and to be taken up by the Commercial Courts-Commercial Courts meaning the Commercial Division of the High Court so far as the High Courts having original jurisdiction.
7. Let me now therefore reproduce Section 7 which has been introduced by the Act of 2015 in its entirety and this provision reads as under:-
"7. Jurisdiction of Commercial Divisions of High Court-All suits and applications relating to commercial disputes of a Specified Value filed in a High Court having ordinary original civil jurisdiction shall be heard and disposed of by the Commercial Division of that High Court:
Provided that all suits and application relating to commercial disputes, stipulated by an Act to lie in a court not inferior to a District Court, and filed or pending on the original side of the High Court, shall be heard and disposed of by the Commercial Division of the High Court:
Provided further that all suits and applications transferred to the High Court by virtue of sub-section (4) of section 22 of the Designs Act, 2000 or section 104 of the Patents Act, 1970 shall be heard and disposed of by the Commercial Division of the High Court in all the areas over which the High Court exercises ordinary original civil jurisdiction." (underlining added)
8. It is clear that the expression 'and filed' has been elaborated by the Legislature to mean those cases which are filed or pending i.e even if a case is pending as on the date of bringing in the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015, such pending cases will be continued to be tried by the Commercial Division of the High Court irrespective of these matters not being above the specified value and being below the specified value upto Rs.1 crore. There cannot be any other interpretation of the expression being of the words and 'filed or pending' as found in the first proviso to Section 7 of the Act of 2015. If these words are to be interpreted to mean that cases which are filed and pending will have to be transferred since their pecuniary value is less than rupees one crore, then the same will defeat the intention of the legislature in changing the language of the first proviso to Section 7 whereby the words 'and filed' has been amended to 'and filed or pending'.
9. Of course, I must concede that the language contained in the first proviso to Section 7 could have been still better worded to have additional words 'irrespective of the pecuniary jurisdiction', however, in my opinion, the very intention of the legislature can be ganged enough by the adding of the words "or pending" in the first proviso to Section 7 of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015.
10. At this stage, I am reminded of a very unforgettable rule used in a judgment dealing with the interpretation of statutes and which is that "the golden rule is that there is no golden rule". This is stated inasmuch as, though there are various doctrines of interpretation whether of literal interpretation or purposive interpretation or Heydon's Rule and so on, however, ultimately the issue of interpretation boils down to the specific statute and the reason why original words as found have been amended and finally that the context and setting where the words are used has to be read so as to give purpose to bringing in of the necessary words and expressions in the statute.
11. I may also note that the entire object of Section 7, whether as found in the Ordinance, 2015 or found in the Act of 2015, was that the subject matter of Section 7 was those suits which could not be filed in courts below the court of the District Judge. Suits which are the subject matter ofSection 7 are all those suits which could not be filed in a court below the District Judge but could be filed only either before the court of the District Judge or before the High Court. These matters are those which are generally called as IPR matters, and which includes trademarks cases, copyright cases etc which are the subject matter of statutes which contain such provisions that suits under these Acts should not be filed and cannot be entertained by courts below the courts of the District Judge. The relevant provisions in this regard are Section 134 of the Trade Marks Act, 1999 and Section 62 of the Copyright Act, 1957 etc. These Sections are depicted in the chart below:-
Statute Patents Act, Trade Marks Designs Copyright Act, Geographical 1970 Act, 1999 Act, 2000 1957 Indications of Goods (Registration and Protection) Act, 1999 Relevant Section 104 Section 134: Proviso to Section 62 Section 66-Suit Provisions Jurisdiction- Suit for Section Jurisdiction of for No suit for a Infringement, 22(2) court over infringement, declaration etc. to Be matters etc., to be under section Instituted No suit or arising under institute 105 or for Before District any other this Chapter- before district any relief Court- proceeding court under section (1) No suit- for relief (1) Every suit 106 or for under this or other civil (1) No suit,- infringement (a) for the subsection proceeding of a patent infringement of shall be arising under (a) for the shall be a registered instituted in this Chapter in infringement of instituted in trademark; or any court respect of the a registered any court below the infringement of geographical inferior to a (b) relating to court of copyright in indication; or district court any right in a District any work or the having registered Judge. infringement of (b) relating to jurisdiction trademark; or any other right any right in a to try the suit conferred by registered Provided that (c) for passing this Act shall geographical where a off arising out be instituted in indication; or counter- of the use by the district claim for the defendant court having (c) for passing revocation of of any trade jurisdiction. of arising out of the patent is mark which is the use by the made by the identical with (2) For the defendant of defendant, or deceptively purpose of sub- any the suit, similar to the section (1), and geographical along with plaintiff's trade "district court indication the counter- mark, whether having which is claim, shall registered or jurisdiction" identical with be unregistered, shall, or deceptively transferred to shall be notwithstanding similar to the the High instituted in any anything geographical Court for court inferior to contained in the indication decision a District Court Code of Civil relating to the having Procedure, plaintiff, jurisdiction to 1908 or any whether try the suit. other law for registered or the time being unregistered, For the purpose in force, shall be of clauses (a) include a instituted in any and (b) of sub- district court court inferior to section (1), a within the local a district court "District Court limits of whose having having jurisdiction, at jurisdiction to jurisdiction" the time of the try the suit.
shall, institution of
notwithstanding the suit or other (2) For the
anything proceeding, the purpose of
contained in the person clauses (a) and
Code of Civil instituting the (b) of sub-
Procedure, suit or other section (1), a
1908 or any proceeding or, "district Court
other law for where there are having
the time being more than one jurisdiction"
in force, such persons, shall,
include a any of them notwithstanding
District Court actually and anything
within the local voluntarily contained in the
limits of whose resides or Code of Civil
jurisdiction, at carries on Procedure,
the time of the business or 1908 (5 of
institution of personally 1908) or any
the suit or other works for gain. other law for
proceeding, the the time being
person in force,
instituting the include a
suit or District Court
proceeding, or, within the local
where there are limits of whose
more than one jurisdiction, at
such persons the time of the
any of them, institution of
actually and the suit or other
voluntarily proceeding, the
resides or person
carries on instituting the
business or suit proceeding,
personally or, where there
works for gain. 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 authorised
user.
12. Keeping in mind the original intendment of Section 7, and the words as now found in the first proviso to Section 7 of the Act of 2015, one is left in no manner of doubt that with respect to IPR matters, whose statutes and the provisions are reproduced in the above chart, such matters once they are pending in the High Court as on the date of introducing of the Act of 2015 published in the Gazette Notification dated 1.1.2016, such matters will be heard and disposed of by the Commercial Divisions of the High Court even if the pecuniary jurisdiction of these matters are below Rs.1 crore.
13. Accordingly, this Court's conclusion with respect to the language contained in the first proviso to Section 7 of the Act of 2015 is that with respect to IPR matters covered under the different provisions of the Trade Marks Act, Copy Right Act, Designs Act, Patents Act and Geographical Indication of Goods (Registration And Protection) Act, 1999 is that the pending suits and which are the subject matter of the words "filed or pending" contained in the first proviso to Section 7 of the Act of 2015, such suits or IPR matters, even if their valuation is below Rs.1 crore, the same will be dealt with and decided by the Commercial Division(s) of the High Court if their pecuniary jurisdiction valuation is above Rs. 20 lacs (for Delhi High Court) but below Rs.1 crore.
14. The issue with respect to first proviso to Section 7 of the Act of 2015 is answered accordingly.
15. This Court expresses its gratitude to Ms. Kripa Pandit, Advocate who has very ably argued on the issue which is decided in the present judgment by supporting the arguments with the requisite material.
16. Each of the suits which are therefore the subject matter of the present judgment will be listed for further proceedings before the Joint Registrar on 5th May, 2016.
TR. P.(C) No.1/2016
17. This transfer petition stands allowed in terms of the prayer made therein and the suit which has been transferred to the concerned jurisdictional District Court will be re-transferred to this Court. All pending applications also stand disposed of accordingly. I.A. No.17748/2015 (u/O VI Rule 17 CPC) in CS(OS) No.1180/2011 I.A. No.24164/2015 (u/O VI Rule 17 CPC) in CS(OS) No.2599/2010
18. Disposed of as not pressed.
FEBRUARY 15, 2016 VALMIKI J. MEHTA, J dkg/ib
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