- (1.) The appellant is the first defendant in the suit filed in C.S.No.949 of 2008. Pending suit, an application was filed by the appellant under Order VII Rule 11 of the Code of Civil Procedure (hereinafter referred to as "the C.P.C.,") to reject the plaint on the ground of lack of territorial jurisdiction alleging that no cause of action has arisen within the jurisdiction of the Court. The learned single Judge has dismissed the said application and therefore, the appellant has come forward to file this Original Side Appeal before us.
(2.) Facts in Brief:- 2.1. The first respondent filed a suit against the appellant herein and the second respondent seeking the following reliefs: "(i) Permanent injunction to restrain the first defendant from using the registered design of the plaintiff to his products; (ii) Permanent injunction to restrain the first defendant from passing off his goods as that of the plaintiff's products; (iii) Directing the defendants to surrender to the plaintiff for destruction all the infringing goods and associated items such as moulds, dies, articles, packets, cartons, packaging materials, advertising materials etc., and all other things used in connection with the manufacture or marketing of the infringing goods; (iv) Direct the defendants to pay compensation to the plaintiff by way of damages for the infringement and the loss suffered by the plaintiff; (v) Direct the defendants to pay the costs of the suit; (vi) Pass any such other orders as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case and in the interest of justice." 2.2. In the said suit the first respondent has averred in its plaint that it is carrying on business in Chennai having its residence within the jurisdiction of this Court. A further averment has been made that the defendants have sold their infringed goods at Chennai by themselves or through their agents. The relief has been sought for on the basis of passing off their goods as that of the plaintiff in Chennai. The relevant averments in the plaint regarding the cause of action are as follows: "15. The plaintiff is carrying on business in Chennai and resides within the jurisdiction of this Hon'ble Court and hence it is submitted that this Hon'ble Court has competent jurisdiction to try this suit. The plaintiff has stated in detail in the plaint how and when the defendants have acted in violation of plaintiff's Design right how the defendants have passed off their goods as that of the plaintiff. Since the defendants have sold their infringing goods at Chennai either by themselves or through their agents and have passed off their own goods as that of the plaintiff in Chennai, this Hon'ble Court has jurisdiction to entertain the suit against the defendants. Further the plaintiff resides and carries on business within the jurisdiction of this Hon'ble Court. Though the reliefs are sought under the Designs Act, 2000 and the Trade Marks Act, 1999, they all arise from a single transaction of selling the infringing product in the market and hence, from a single cause of action." 2.3. An application was filed by the appellant in Application No.5533 of 2008 in C.S.No.949 of 2008 seeking invocation of the power of this Court for the rejection of the plaint under Order VII Rule 11 of C.P.C. It has been contended in the said application that the plaintiff cannot sue before this Court with the averment that it resides and carries on business in an action for infringement of its registered design under the Designs Act, 2000. There is no cause of action for maintaining the suit before this Court as the plaintiff has failed to make necessary averments that the first defendant is selling his product commercially within its jurisdiction. A third contention has been raised that inasmuch as the defendants are residing outside jurisdiction of this Court, the suit is liable to be set aside as no leave has been obtained by the plaintiff as required under Clause 12 of the Letters Patent Act. 2.4. The learned single Judge dismissed the application by making reliance upon Section 134 of the Trade Marks Act, 1999, Section 11 of the Designs Act, 2000, along with Section 62(2) of the Copy Right Act, 1957. Accordingly, the learned single Judge was pleased to hold that inasmuch as there are averments to show that the plaintiff is residing and carrying on the business within the territorial jurisdiction of this Court, the suit as filed is maintainable. Challenging the same, the present Original Side Appeal has been filed.
(3.) Submissions of the appellant: 3.1. The learned counsel appearing for the appellant would submit that the learned single Judge was not correct in making reliance upon Section 134 of the Trade Marks Act, 1999, Section 11 of the Designs Act, 2000, and Section 62(2) of the Copy Right Act, 1957. The provisions of the Copy Right Act, 1957 are not applicable to the case on hand. A copy right in a design as defined in the Designs Act, 2000, is different from one as defined in the Copy Right Act, 1957. Section 15 of the Copy Right Act, 1957, places an embargo for enforcing a right of the copy right design coming under the purview of the Designs Act, 2000. Therefore, there cannot be any application of Section 62(2) of the Copy Right Act, 1957. In other words, no relief can be claimed based upon the provisions of the Copy Right Act, 1957. Hence, there is no territorial jurisdiction available to the plaintiff as stipulated under Section 62(2) of the Copy Right Act, 1957. According to the appellant, even assuming that the plaintiff is residing and carrying on business within the jurisdiction of this Court, Section 62(2) of the Copy Right Act, 1957, which empowers a suit to be filed cannot be applied to the present suit as the relief sought for is an infringement of a design under the Designs Act, 2000. It is further submitted that the averments do not disclose a cause of action and therefore, in the absence of the same, the application ought to have been allowed by the learned single Judge. Further more, as the defendants are residing outside jurisdiction of the Court, the plaintiff ought to have sought for leave under Section 12 of the Letters patent Act. As the said requirement is mandatory, the non-compliance of the same would make the suit as not maintainable in law. 3.2. In support of his contention, the learned counsel apart from the written submissions, made reliance upon the following judgments: (i) Arun Agarwal V. Nagreeka Exports (P) Ltd., 2002 10 SCC 101; (ii) T.Arivanandam V. T.V.Satyapal, 1977 4 SCC 467; (iii) Exphar Sa and another V. Eupharme Laboratories Ltd., and another, 2004 3 SCC 688; (iv) Ramesh B.Desai V. Bipin Vadilal Mehta, 2006 5 SCC 638; (v) The Clan Line Steamers Ltd., V. Gordon Woodroffe & Company, 1980 AIR(Mad) 73; (vi) Microfibres Inc. V. Giridhar & Co., 2009 40 PTC 519; (vii) State v. Ratan Lal Arora, 2004 4 SCC 590; and (viii) Mohan Chowdhury V. Chief Commissioner, Tripura, 1964 AIR(SC) 173. A legal issue is also raised by the learned counsel appearing for the appellant that even though the word Designs Act, 2000 has been incorporated into Section 15 of the Copy Right Act, 1957, with effect from 21.06.2012 by replacing "Designs Act, 1911", the embargo provided therein would continue to apply. In other words, it is submitted that in the absence of a different intention expressed by the legislature, the reference to the repealed Act would be considered as a reference to the new Act. Therefore, the learned counsel would submit that the above appeal will have to be allowed and consequently, the plaint filed on the file of C.S.No.949 of 2008 will have to be rejected.;