$~15 and 16
*
IN THE
HIGH COURT OF
DELHI AT NEW
DELHI
+
FAO 56/2017 and C.M.
Nos.4297/2017 (stay) & 4280/2017 (for summoning of TCR)
SANDHYA KUMARI PROPRIETRESS M/S
SHIVANI TRADERS
.....
Appellant
Through: Mr. Ajay
Amitabh Suman, Advocate
with Mr.
Kapil Kumar Giri,
Advocate.
versus
M/S GUPTA
& SONS AND ANR .....
Respondents
Through: Ms. Indu Kaul, Advocate.
+
FAO 57/2017 and C.M.
Nos.4288/2017 (stay) & 4289/2017 (for summoning of TCR)
SANDHYA KUMARI PROPRIETRESS M/S
SHIVANI TRADERS
..... Appellant
Through: Mr. Ajay
Amitabh Suman, Advocate
with Mr.
Kapil Kumar Giri,
Advocate.
versus
M/S
SAKSHI FOOD .....
Respondent
Through: Ms. Indu
Kaul, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
O R D E R
% 02.05.2017
FAO
Nos.56/2017 & 57/2017 page 1 of
3
1. Learned counsel for the respondents seeks time to place on record
documents which have been filed by the respondents/defendants before the trial
court and without prejudice to the respective rights and contentions, this
Court prima facie observes as under:-
(i)
Both the parties are not residing
or carrying on businesses at Delhi because addresses of both the parties are of
Sambhal, U.P. Though existence of jurisdiction is a disputed question of fact
which requires trial in view of the statement in the plaint that
respondents/defendants are selling the goods at Delhi, however no documents are
filed of defendants selling their goods at Delhi, and such self-serving
averments in the plaint will not for the purpose of considering the issue of
grant of injunction prevent this Court from making prima facie observations of lack of territorial jurisdiction of
this Court, and hence disentitlement of the courts in Delhi to grant interim
injunction.
(ii)
Respondents are registered for
commercial taxes since around the year 2011 with the Department of Commercial
Taxes, Government of Uttar Pradesh and for which certificate is filed at page
184, and the counsel for the
respondents/defendants states
that in fact the registration is from much prior
FAO Nos.56/2017
& 57/2017 page 2 of
3
period and with respect to which
documents will be filed.
(iii) There are respective cases of the prior user and as per the status
existing as of date of pleadings and documents, it is not easy to decide the
issue of prior user at this interim stage.
2. Counsels for the parties will ensure that they file in the Court all
the necessary pleadings and documents existing in the trial court record for
the decision of these appeals.
3. List on 6th
September, 2017.
VALMIKI J. MEHTA, J
MAY 02, 2017
Ne
FAO
Nos.56/2017 & 57/2017 page 3 of
3
