- (1.) The petitioner-defendant is aggrieved of the dismissal of the application moved under Order VII Rule 10 and Rule 11(a) and (d) read with Section 151 of the Code of Civil Procedure seeking return and rejection of the plaint on the ground that Civil Court at Amritsar qua passing off Trademark in a suit seeking infringement, rendition of accounts, much less, copyright did not have the jurisdiction. Mr. Gaurva Chopra, learned counsel appearing on behalf of the petitioner-defendant submits that respondent-plaintiff instituted a suit invoking the provisions of Sections 134 and 135 of the Trade Marks Act, 1999 (hereinafter referred to as "1999 Act"), Sections 55 and 62 of the Copyright Act, 1957 (hereinafter referred to as "1957 Act"), for permanent injunction restraining the petitioner-defendant from committing unlawful acts of infringement of his registered Trademark "MOHUN'S" and copyright thereof and further restrained from using identical or deceptively similar Trademark "MOHAN'S" from passing off the rendition of accounts and damages. No doubt, the Civil Court at Amritsar would have a jurisdiction to try the suit as per the provisions of Sections 134 and 135 of 1999 Act vis-a-vis infringment. He further submits that sub-section (2) of Section 134 only envisages the jurisdiction of the Court vis-a-vis sub clause (a) and (b) of sub section (1), whereas, sub clause (c) deals with passing off and in the absence of place of jurisdiction, the provisions of Sections 19 and 20 of the Code of Civil Procedure would be resorted to. For all intents and purposes, the petitioner-defendant is running his business at Delhi, and therefore, the claim qua passing off at Amritsar is not maintainable and therefore, moved an application under Order VII Rule 10 and Rule 11(a) and (d) read with Section 151 of the Code of Civil Procedure.
(2.) In support of his aforementioned submissions, he has drawn the attention of this Court to paragraphs 53 and 54 of the plaint and as well as, corresponding paragraphs of the written statement to contend that opinion formed by the trial Court vis-a-vis admission of the petitioner qua carrying of the business at Amritsar is totally misplaced. He has also drawn the attention of this Court to Annexure P-1, the alleged registration application bearing No.865401 dated 13.7.1999 referred to in paragraph 53 of the plaint, where there is no mention showing any intention carrying his business under the Trademark "MOHAN'S" in Amritsar. In support of his contentions, he relied upon the following case laws which read thus:- 1. Dhodha House vs. S.K.Maingi, 2006 AIR(SC) 730 ; 2. Dabur India Limited vs. KR Industries, 2008 AIR(SC) 3123 ; 3. Paragon Rubber Industries vs. Pragathi Rubber Mills and others, 2014 133 AllIndCas 96 ; 4. Lakhan Pal Shyam Kumar vs. Ram Prasad Gupta and another, 2012 AIR(SC) 2375 and 5. Heinz India Pvt. Ltd. vs. Shrejee Remedies 2013 SCC OnLine Del 1644. By referring to the judgment of the Hon'ble Supreme Court in Dhodha House's case , he has referred to the findings rendered in paragraphs 30, 31 and 54 to contend that mere filing of the application before the Registrar for registration of the Trademark, which though, was abandoned and specifically pleaded in the written statement, the cause of action would not arise to the respondent-plaintiff to invoke the jurisdiction of the Court at Amritsar vis-a-vis passing off the Trademark. He submits that similar situation had arisen before the Hon'ble Supreme Court, wherein, it was observed that a cause of action will arise only where a registered Trademark is used and not when an application is filed for registration of the Trademark. Once the application, as referred to in paragraph 54 of the plaint, was abandoned, no other evidence, for example, bills or any other proof, has been placed on record by the respondent-plaintiff to show the alleged passing off his being done within the territorial jurisdiction the Court at Amritsar. Since the petitioner and respondent are carrying out their business at Delhi, the cause of action for the plaintiff would not arise within the jurisdiction of the Court at Amritsar but only at Delhi. By referring to the judgment rendered in Dabur India Limited's case , he has drawn the attention of this Court to paragraphs 6, 21 and 30 to contend that in a composite suit combining independent and distinct cause of action would not entitle the Court to entertain the suit over which it had no jurisdiction, much less, territorial or otherwise, as Order 2 Rule 3 of the Code of Civil Procedure specifically prescribes that the Court cannot assume a jurisdiction over a cause of action founded on a separate set of facts and also the rights and liability of the party under a different statute.
(3.) Similarly by referring to the judgment rendered in Paragon Rubber Industries's case , he has drawn the attention of the Court to paragraphs 14 and 15 to contend that it is the averment in the suit which has to be seen. From the averment made in the instant suit, it is evident that the plaintiff has filed a composite suit which would not be maintainable unless the Court had jurisdiction to entertain the same in relation to the entire cause of action and entire relief. To similar effect judgments of the Hon'ble Delhi High Court in M/s Lakhan Pal Shyam Kumar's case and Heinz India Pvt. Ltd.'s case . He further submits that the trial Court has erroneously taken the averments made in paragraphs 53 and 54 of the plaint in most erroneous and frivolous manner on the premise that petitioner had applied Trademark application bearing No.865401 in respect of "Namkeens" which implies for sale in all over India. Whereas, on the contrary, mark "MOHAN'S" bearing aforementioned application filed in class 30 is not relevant for the present proceedings as the said mark was abandoned for want of action way back in the year 2006. Application is not required to specify the geographical use of mark, unless otherwise there is any restriction or limitation imposed to its use of mark by the Trademark Registrar. Even the findings rendered by the Lower Court in paragraphs 8 and 9 that petitioner is selling good through website is patently misconceived and contrary to the facts and there is no such averment made in the plaint. There is no website for the purpose of advertising or selling the products. Thus, urges this Court for setting aside the impugned order. Mr. Gaurav Arora, learned counsel appearing on behalf of the respondent-plaintiff, in support of his contention, has relied upon Annexure P-124 annexed with the suit to contend that packet with the Trademark "MOHAN'S" selling the milk atta biscuit has the stamp of price of Rs. 94/- for the purpose of sale in Delhi and Rs. 92/- outside the Delhi, and therefore, for all intents and purposes, the petitionerdefendant is indulging into passing off in respect of similar Trademark in the entire country and therefore, Court at Amritsar has the jurisdiction vis-a-vis claim of "Passing Off". By referring to Annexure P-1, he submits that application applied for registration of Trademark "MOHAN'S" meant for all India purposes, as there is no column for the purpose of sale of the product having registered Trademark of "MOHAN'S" in particular district. He has also drawn the attention of this Court to the documents to show that there is website of the petitioner which deals with the sale of the product in the entire India.;