Y.K.Sabharwal, J. - (1.) The application filed in the suit for grant of temporary injunction pending disposal of the suit has been dismissed by learned single Judge holding that the appellant/plaintiff has not been able to prima facie show the territorial as well as pecuniary jurisdiction of this court and, therefore, irrespective of the merits or otherwise of its claim the plaintiff would not be entitled to temporary injunction. As in result of this conclusion the application (I.A.4465/89) seeking temporary injunction has been dismissed by the impugned order and the order dated 30th June 1989 granting interim injunction in favour of the plaintiff has been vacated. Paras 29 and 30 of the plaint relevant for determining whether prima facie this court has territorial jurisdiction or not read as under:- "29. The cause of action for the present suit in favour of the plaintiffs and against the defendants arose first of all in the year 1982 when the defendant No.1 applied for the registration of the trade mark MARSHAL and the plaintiffs served a notice on the defendant No.1 dated 23.7.82. The cause of action again arose when the plaintiffs came to know from the Trade Marks Journal No.823 dated 16.9.83 that defendant No.2 had applied for the registration of the trade mark (logo) PFMA in respect of the goods of the same type and the plaintiffs filed notice of opposition against the same. The plaintiffs did not think it proper to take any legal action at the court against the defendants in the matter and thought it before to wail till the decision of their opposition applications and hence the cause of action then arose on 30.4.1988 when the said applications of defendant No.2 were refused for registration by the Registrar of Trade Marks Bombay. The cause of action lastly arose in the month of June, 1989 when the plaintiff came to know from trade that the partners of the defendants were going to form a company under the Companies Act with the proposed name of the Company containing the word FIELD MARSHAL in their trading style of the Company. Thus the cause of action is continuous from day to day till the defendants are restrained from dealing in any way in the said goods under the impugned trade mark MARSHAL, using the logo PFMA and PFMI and the trading style PATEL FIELD MARSHAL AGENCIES and PATEL FIELD MARSHAL INDUSTRIES. The defendants have also violated the statutory right of plaintiff by imitating the label registered under copyright No.A-42691/1983. 30. That the goods of the parties bearing the impugned trade marks are also sold in the Union Territory of Delhi. The Trade Marks Journal No.823 dated 16.9.83 and No.876 dated 1.12.85 and Journal No.933 dated 16.4.88 were published in India by the Trade Marks Registry in respect of applications of the defendants for registration of the impugned trade marks, including the Union Territory of Delhi. Therefore, this Hon'ble court has jurisdiction to entertain and try the present suit. Moreover, the jurisdiction of this Hon'ble Court is also attracted in view of Section 62(2) of the Copyright Act.
(2.) The plaintiff has valued the relief of rendition of accounts in the suit for the purposes of court fees at Rs.200.00 and the valuation for the purposes of jurisdiction has been fixed at Rs.5,01,000.00 undertaking to pay the additional court fee for relief of rendition of accounts when the exact amount due from the defendants is ascertained. Relying upon an earlier single Bench decision by the impugned order it was held that for purposes of jurisdiction in respect of claim for rendition of accounts the suit had to be valued at Rs.1,000.00 and, therefore, the High Court had not pecuniary jurisdiction to entertain the suit. Learned counsel for the respondents, in view of Division Bench decision of this court in the case of Fenners India Ltd. Vs. Salbros Enterprises Pvt. Ltd. 1997 IV AD (Delhi) 24, has rightly conceded that the impugned judgment to the extent it holds that this court has no pecuniary jurisdiction deserves to be reversed. In this view, therefore, we hold that in suit for unsettled accounts, fixed court fee is payable and for jurisdictional purposes such a suit can be valued in terms of valuation as fixed by the plaintiff.
(3.) Reverting now to the main question in respect of territorial jurisdiction, it may be noticed that the plaintiff has claimed that Delhi High Court has jurisdiction on three counts. Firstly, in view of Section 62 of the Copyright Act, 1957. Secondly, in view of the fact that the defendants had sought registration of trade mark for sale at Delhi as well and, therefore, the plaintiff is entitled to restrain the threatened sale by defendants at Delhi. Thirdly, it has been claimed that the goods under the impugned mark have been sold at Delhi and the plaintiff's rights violated at Delhi. On the other hand, the defendants claim that Delhi Court has no jurisdiction as plaintiff and defendants, have been residing at Rajkot and both the parties have also been ordinarily working for gain at Rajkot and that no sale has been effected by defendants within the territorial jurisdiction of this court.;