SOUMEN SEN, J. - (1.) THE plaintiff has filed this application for obtaining leave under Clause 14 of the Letters Patent.
(2.) THE plaintiff has instituted the suit on 20th January, 2009. In the suit, the plaintiff has prayed decree of permanent injunction for restraining the defendants from infringing or using the trademark PILOT and/or PILOT NUMBR ONE. The plaintiff has also prayed for permanent injunction restraining the defendant from selling and/or passing off or causing to pass off the products o the defendant bearing the impugned mark PILOT as and for those of the plaintiff. At the time of institution of the suit, the plaintiff did not pray leave under Clause 12 of the Letters Patent. The plaintiff contends that this Hon'ble Court has jurisdiction to entertain the instant suit in respect of the plaintiff's infringement of trademark PILOT by virtue of Section 134(2) of the Trade Marks Act, 1999 as the plaintiff's registered office is situated within the jurisdiction of this Hon'ble Court. The plaintiff contends that the defendant in his written statement filed sometimes in April, 2010 purported to question the territorial jurisdiction of this Hon'ble Court to entertain the instant suit in respect of the plaintiff's claim for passing off. The defendant has alleged that no part of the cause of action in respect of the plaintiffs' claim for passing off has arisen within the jurisdiction of this Hon'ble Court.
(3.) MR . S.N. Mookherjee, the learned Senior Counsel appearing on behalf of the plaintiff submits that due to oversight, the plaintiff had omitted to pray for leave under Clause 14 of the Letters Patent at the time of presenting and/or filing the plaint although necessary pleadings in relation thereto are present and on the existing pleading the plaintiff is entitled to claim leave under Clause 14 of the Letters Patent. Further, due to the pendency of the interlocutory proceedings in the instant suit, no steps could be taken to apply for such leave. It is argued that it is settled position that leave under Clause 14 of the Letters Patent can be granted by this Hon'ble Court at any time before the commencement of trial in a suit. The learned Senior Counsel has referred to the interlocutory petition filed by the defendant for stay of further proceedings in which a prayer was made for expunging and/or deleting from the plaint the plaintiffs in respect of the passing off.;