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IN THE
HIGH COURT OF DELHI AT NEW DELHI
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Date of decision: 18th August, 2017
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CM(M) No.875/2017 and CM
No.29231/2017 (for stay)
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B.M.K MARKETING & ORS
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..... Petitioners
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Through:Mr.
Jayant Mehta with Mr. Jaspreet
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Singh
and Ms. Disha Malhotra, Advs.
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Versus
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KRBL LIMITED
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..... Respondent
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Through:Mr. S.K.
Bansal, Mr. Vinay
Kumar
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Shukla,
Mr. Ajay Amitabh Suman and
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Mr.
Kapil Kumar Giri, Advs.
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CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
Caveat No.729/2017.
1.
The counsel for the Caveator has appeared.
2.
The Caveat stands discharged.
CM No.29232/2017 (for exemption).
3.
Allowed, subject to just exceptions.
4.
The application stands disposed of.
CM(M) No.875/2017 and CM
No.29231/2017 (for stay).
5.
This petition under Article 227 of
the Constitution of India impugns the order (dated 18th May, 2017 in TM No.51/16 of the
Court of Additional District Judge-03, Patiala House Courts, New Delhi
District) of dismissal of the application under Order VII Rule 10 of the Code
of Civil Procedure, 1908 (CPC) filed by the petitioners / defendants for return
of the plaint in the suit filed by the respondent / plaintiff for injunction
and ancillary reliefs against passing off.
CM (M)
No.875/2017 Page 1
of 9
6.
I have enquired from the counsel
for the petitioners / defendants whether not the order of dismissal of an
application under Order VII Rule 10 of the CPC would be revisable under Section
115 of the CPC.
7.
The counsel for the petitioners /
defendants states that since the jurisdiction of this Court under Section 115
of the CPC and under Article
227
of the Constitution of India is
alike, the said question need not come in the way of consideration of this
petition. Reference is made to Surya Dev Rai Vs. Ram Chander Rai (2003)
6 SCC 675.
8.
Supreme Court in para 26 of Surya
Dev Rai supra itself has said that the High Court would be justified in
refusing to exercise jurisdiction under Article 227 of the Constitution of
India with respect to orders remedy whereagainst is provided in the CPC or
under some other Statute. To the same effect are i) Sadhana Lodh Vs. National
Insurance Co. Ltd. (2003) 3 SCC 524; ii) State Bank of India Vs. Allied
Chemical Laboratories (2006)
9
SCC 252; iii) Bijay
Kumar Duggal Vs. Bidya Dhar Dutta (2006) 3 SCC 242; iv) Ajay
Bansal Vs. Anup Mehta (2007) 2 SCC 275; and, v) Seth Rattan Chand Vs. Pandit Durga
Prasad (2003) 5 SCC 399.
9.
It is thus felt that this Court
should not continue to entertain petitions which should have been filed under
Section 115 of the CPC but have wrongly been filed under Article 227 of the
Constitution of India and which is leading to the bar not following the law as
it should.
10.
Though I have been rejecting such
petitions but on the assurance of the counsel for the petitioners / defendants
that he will take care in future, the counsel for the petitioners / defendants
has been heard on merits.
11.
The respondent / plaintiff, in
paras 41 and 43 of the plaint, has pleaded as under with respect to the
territorial jurisdiction of the Court at Delhi:-
CM (M)
No.875/2017 Page 2
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“41. The
Plaintiff also learnt that the Defendants are carrying on its impugned
activities under the impugned Trade Mark / Label in a clandestine and
surreptitious manner and that too without issuing formal sale bills. The
Defendants are not only making the retain sales but is also supplying the
impugned goods bearing the impugned Trade Mark / Label to various other dealers
/ shopkeepers / retailers including in New Delhi area, who are making the
clandestine and surreptitious sales thereof to the unscrupulous traders and
manufacturers of the counterfeit products of the Plaintiff under the said Trade
Mark / Label in the markets of New Delhi area viz. Connaught Place, Gole
Market, Bengali Market, Chankyapuri, Mandir Marg etc. In any case the alleged
user of the Defendants are illegal and void-ab-initio.
43.
That this Hon’ble Court has the territorial jurisdiction to try and
adjudicate the present suit. The defendants are making clandestine and
surreptitious sales, offering for sale, and are also supplying, purveying,
displaying, and soliciting (also through its website www.saffronwala.com), have intention to sell their impugned goods and
business under the impugned trade mark / label in New Delhi area viz. Connaught
Place, Gole Market, Vasant Kunj, Bengali Market, Naraina, Mandir Magar etc. The
defendants are committing the impugned acts of infringement and passing-off in
the markets of New Delhi area viz. Connaught Place, Gole Market, Vasant Kunj, Bengali
Market, Naraina, Mandir Marg etc. within the jurisdiction of this Hon’ble Court
by selling, soliciting, trade, distribution, and marketing networks in relation
to the impugned goods under the impugned trademark / label. The plaintiff’s
above said proprietary rights are
CM (M)
No.875/2017 Page 3
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being prejudicially affected or
likely to be so affected in New Delhi due to the defendants’ impugned
activities. The defendants are selling / trading / soliciting, have all the
intention to use the impugned trademark / label in the markets of New Delhi
viz. Connaught Place, Gole Market, Vasant Kunj, Bengali Market, Naraina, Mandir
Marg etc. The impugned products of the defendants are available in New Delhi
area. The defendants are committing act of infringement of plaintiff’s
trademark and copyright and passing-off within the territorial jurisdiction of
this Hon’ble Court. The defendants are soliciting and intend to sell their
counterfeit goods in New Delhi area and are committing the act of infringement
and passing off in New Delhi by making the clandestine and surreptitious sales
and distribution of the impugned goods under the impugned Trade Mark / Label.
The carrying of business by the defendants in New Delhi (vide abovesaid acts
and / or violations) as well as whole or part of cause of action for filing the
suit has arisen within the territorial jurisdiction of this Hon’ble Court
within the meaning of Section 20 of Code of Civil Procedure, 1908. Besides
this, a part of cause of action arose in favour of the plaintiff against the
defendants within the territorial jurisdiction of this Hon’ble Court. The
plaintiff is having registered office in Delhi and is selling the goods under
the said trademark / label INDIA GATE with device of INDIA GATE in New Delhi
market viz. Gole Marekt, Khan Market, Bengali Market, Naraina etc. through its
authorised distributors National Pure Products and R.S. Distributors. Further,
the plaintiff is maintaining its website Portal ecommerce website www.krblrice.in which is interactive in nature and having accessibility within the
Jurisdiction of the
CM (M)
No.875/2017 Page 4
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Hon’ble
Court. The plaintiff has tremendous goodwill and reputation in its said trade
mark / label INDIA GATE within device of INDIA GATE within the jurisdiction of
this Hon’ble Court on account of voluminous sales, Advertisement and
distribution. This Hon’ble Court as such also has a jurisdiction to try and
adjudicate the present suit by virtue of Section 62(2) of the Copyright Act.”
12.
The first contention of the
counsel for the petitioners / defendants is that the impugned order suffers
from perversity inasmuch as the learned Additional District Judge in para 15 of
the impugned order, referring to para
32
of the plaint, has held that the
same contains a plea of the petitioners / defendants selling goods in New Delhi
area. It is contended that though para
32
is re-produced also in para 14 of
the impugned order, but a reading thereof would show that there is not a
whisper therein about the petitioners / defendants selling in New Delhi area.
13.
The said mistake of the learned
Additional District Judge would not lead to setting aside of the order, if
otherwise the same is found to be correct.
14.
It has thus been enquired from
the counsel for the petitioners / defendants as to how, in the light of
averments in paras 41 and 43 of the plaint, it can be said that the plaint
should be returned at the threshold only.
15.
The counsel for the petitioners /
defendants has argued that the plaint has to be read meaningfully and the
clever drafting by the Advocate for the respondent / plaintiff should not be
permitted to create territorial jurisdiction where none exists. It is contended
that the petitioners / defendants in the present case are at Srinagar and
Telangana and no cause of action has accrued to the respondent / plaintiff
against the petitioners / defendants
CM (M)
No.875/2017 Page 5
of 9
within the territorial jurisdiction of this Court.
It is argued that though the plaint is verified on the basis of documents but
the respondent / plaintiff has not placed a single document before the Court to
support the pleas contains in paras 41 and 43 supra. On enquiry, whether any of
the impugned goods of the petitioners / defendants sell in Delhi, the counsel
for the petitioners / defendants states that the petitioners / defendants do
not sell their goods in Delhi. Reliance is placed on Begum Sabiha Sultan Vs. Nawab
Mohd. Mansur Ali Khan (2007) 4 SCC 343.
16.
Begum Sabiha Sultan supra was a case under Section 16 of the CPC. The reliefs claimed in
that suit were of (i) declaration that oral Will allegedly made at Delhi was
never made; (ii) declaration that the Sale Deed executed was null and void;
(iii) of partition of immovable property situated outside Delhi; and, (iv) of
rendition of accounts, injunction etc. the Supreme Court affirmed the judgment
of the Single Judge and the Division Bench of this Court returning the plaint,
observing that though at the stage of consideration of the application under
Order VII Rule 10 of the CPC it is only the plaint which is to be looked into
but the plaint has to be read in a meaningful manner to find out the real
intention behind the suit. It was further held that reading of the plaint in that
case left no manner of doubt that the suit was essentially for the relief of
partition and declaration with respect to properties situated outside the
territorial jurisdiction of the Courts at Delhi and there was really no need
for the relief sought of declaration of the oral Will claimed to have been made
at Delhi.
17.
I am afraid, the aforesaid
judgment cannot have application to the present situation. There is a
difference between ‘meaningful reading of the plaint, to fathom what is the
real claim therein’ and ‘determining the truth or
CM (M)
No.875/2017 Page 6
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falsity of the averments in the plaint’. What the Supreme Court in Begum
Sabiha
Sultan did was to see the real relief claimed in the suit
and for grant of which the Court at Delhi had no jurisdiction
and held that the relief claimed to create jurisdiction of this Court was not
material. However the petitioners / defendants in the present case want this
Court to do, at the stage of Order VII Rule 10 CPC, without any evidence, is to
hold that the averments in paras 41 and 43 of the plaint are not to be believed
for the reason of no document in support thereof having been filed. Rather, I
have enquired from the counsel for the petitioners / defendants that though the
respondent / plaintiff may not have filed any invoices / bills of sale of goods
by the petitioners / defendants at Delhi, whether they have filed the report of
any investigator. The answer is in the negative.
18.
The counsel for the respondent / plaintiff has per
contra relied upon
Allied Blenders & Distillers Pvt. Ltd. Vs. Prag
Distillery Pvt. Ltd. 2017 III AD (Delhi) 633 (DB)
where it has been held in the context of an application under Order VII Rule 10
of the CPC in a suit inter alia for
passing off, i.e. of the same nature as the suit subject matter of this
petition, that once the allegations were found in the plaint, which if proved
vested this Court with territorial jurisdiction, the Court could not go into
the correctness or falsity thereof. The counsel for the respondent / plaintiff
contends that in fact the suit subject matter of Allied Blenders & Distillers
Pvt. Ltd. was a quia timet
action.
19.
The counsel for the respondent /
plaintiff in this regard has also referred to para 11 of RSPL Limited Vs. Mukesh Sharma
232 (2016) DLT
161 (DB).
CM (M)
No.875/2017 Page 7
of 9
20.
Once the distinction between ‘meaningful reading of
the plaint’ and
‘determining the truth and falsity of the averments in the plaint’ is
realised, the argument of the petitioners / defendants falls.
21.
The counsel for the petitioners /
defendants states that his argument is not to the said effect but to the effect
that ‘a prima facie view’ of the
matter should be taken, based on the plaint and the documents.
22.
I am afraid I am unable to agree
with the said proposition also. Applications under Order VII Rule 10
applications are not to be decided taking a prima
facie view qua territorial jurisdiction. In fact, the Courts have with
respect to framing of preliminary issue qua the aspect of territorial
jurisdiction also held that the issue, when a mixed question of law and fact,
cannot be ordered to be treated as a preliminary issue. Reference in this
regard may be made to Major S.S. Khanna Vs. Brig. F.J. Dillon
AIR 1964 SCC 497 and Ramesh B. Desai Vs. Bipin Vadilal Mehta
(2006) 5 SCC 638. Once that is so, the factual disputes which arise as to
territorial jurisdiction i.e. whether the averments in paras 41 and 43 are true
or not, can be decided only after trial and hence the application under Order
VII Rule 10 of the CPC has been rightly dismissed by the learned Additional
District Judge.
23.
I must however hasten to add that
recently in Kuldeep Singh Pathania Vs. Bikram Singh Jaryal (2017) 5 SCC
345 Supreme Court has dealt with the relative scope of Order VII
Rule 11 vis-a-vis Order XIV Rule 2 of the CPC. It was held i) the whole purpose
of trial on preliminary issue is to save time and money; ii) though it is not a
mini trial, the Court can and has to look into the entire pleadings and
material available on record, to the extent not in dispute; iii) but that is
not the situation as far as enquiry under Order VII Rule 11 of the CPC
concerned – that is only on institutional defects – the
CM (M)
No.875/2017 Page 8
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Court can only see whether the plaint, or rather the pleadings of
plaintiff, constitute cause of action – pleadings in the sense, where written
statement is filed and if there is a replication thereto, the same can also, in
a given case, be looked into to see whether there is any admission on the part
of plaintiff;
iv)
in other words, under Order VII
Rule 11, the Court has to take a decision looking at the pleadings of the
plaintiff only and not on the rebuttal made by the defendant or any other
material produced by the defendant.
24.
There is no merit in the petition.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
AUGUST 18, 2017
‘pp’..
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No.875/2017 Page 9
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