Puja Mechanical Works and anr. Vs. Pooja Machines (P) Ltd. - Court Judgment

SooperKanoon Citationsooperkanoon.com/636308
SubjectIntellectual Property Rights
CourtPunjab and Haryana High Court
Decided OnSep-03-2008
Judge Vinod K. Sharma, J.
Reported in(2009)154PLR116
AppellantPuja Mechanical Works and anr.
RespondentPooja Machines (P) Ltd.
DispositionPetition dismissed
Cases ReferredState Bank of India v. Sanjeev Malik and Ors.
Excerpt:
- vinod k. sharma, j.1. by invoking the provisions of article 227 of the constitution of india read with section 115 cpc the petitioners have challenged the order dated 26.7.2006 annexure p-l vide which application moved by the petitioners under order 7 rule 11 read with section 151 cpc for rejection of the plaint, for want of territorial jurisdiction, has been ordered to be dismissed.2. the respondent-plaintiff filed a suit for infringement of registered trade mark under the trade marks act, 1999 seeking declaration to the effect that the petitioner-defendant their agents, assignees, representatives, employees do not have any right, interest or legal right to sell or market sewing machines, sewing machine stands, tables, bases, covers, motor & ceiling fans, pedestal fans, mono-block pump etc. stablizers & others accessories or any goods by infringing the registered trade name 'pooja' belonging to the plaintiff under the garb of the name of the defendants business concern 'puja mechanical works' by 'passing off' their product, which are identical and deceptively and phonetically similar to the registered trade mark 'pooja' exclusively belong to the plaintiff-respondent. consequently, relief of permanent injunction was also sought.3. the plaintiff-respondents have also claimed damages amounting to rupees twenty lacs along with interest @ 18% per annum.4. on notice having been issued, the petitioner put in appearance and moved an application under order 7 rule 1 read with section 151 cpc for rejection of the plaint for want of territorial jurisdiction. the application was moved by invoking the provisions of section 20 cpc to contend that neither any cause of action has accrued to the plaintiff respondent within the jurisdiction of gurdaspur court nor the defendant petitioner resides within the territorial jurisdiction and, thus, the court would have no jurisdiction to entertain and try the said suit. the application moved by the petitioner was rejected.5. the court held that it is only after the evidence is led that it would be possible for the court to form an opinion as to whether the petitioner-defendant has sold the goods manufactured by him within the territorial jurisdiction of gurdaspur and thus violated the provisions of trade marks act, 1999.6. mr. r.l. gupta, learned counsel appearing on behalf of the petitioner contends that in the suit filed by the plaintiff respondent, no averments have been to the effect that the goods manufactured by the petitioner-defendant have been sold within the territorial jurisdiction of gurdaspur nor there are any allegations that the petitioner-defendants are carrying on business within the territorial jurisdiction of this court. the contention of the learned counsel for the petitioner was that in view of the pleadings in the plaint, the court was not justified in rejecting the application moved by the petitioner.7. the learned counsel for the petitioner also contends that under section 134 of the trade marks act, 1999 suit with regard to infringement of registered trade mark or right regarding to register trade mark only can be filed in the district court where the plaintiff resides. however, the claim with regard to 'passing off' is required to be filed in terms of section 20 of the cpc.8. the contention of the learned counsel for the petitioner therefore, was that the relief qua the 'passing off' could not be entertained by the court of district judge at gurdaspur and qua said part the plaint was required to be rejected.9. it is also the contention of the learned counsel for the petitioner that as part of claim in suit could not be entertained it was incumbent upon the court to have returned the plaint in toto for presentation in the court of competent jurisdiction. in support of this contention the learned counsel for the petitioner has placed reliance on the judgment of hon'ble delhi high court in the case of dabur india limited v. k.r. industries 2006(33) p.t.c. 107 (del.). in the judgment the hon'ble delhi high court has been pleased to lay down as under:.in the present case a bare perusal of the plaint would show that the suit is based upon alleged infringement of registered trade mark or relating to any right in a registered trade mark or for passing off by the defendant of any trade mark which is identical with or deceptively similar to the plaintiffs, trade mark. such a suit cannot be entertained by the court at gazhiabad in view of section 105 of the trade and merchandise marks act. the mere fact that the court may have jurisdiction to entertain the suit with respect to a cause of action under the copy right act under section 62 of the act can be of no avail. i am, therefore, of the opinion that the court at gazhiabad has no territorial jurisdiction to try the suit.10. however, the judgment relied upon by the learned counsel for the petitioner has 'no application to the facts of the present case as the hon'ble delhi high court was interpreting section 105 of the trade and merchandise marks act and not trade marks act, 1999. section 134 of the trade marks act, 1999 give jurisdiction to the court to entertain a petition where the plaintiff is having his business. it is not in dispute that the plaintiff-respondent is having business in gurdaspur so the authority relied upon by the petitioner is of no help.11. the learned counsel for the petitioner thereafter, places reliance on the judgment of the hon'ble delhi high court in the case of gupta brothers conduit pipe v. anil gupta and anr. 2001(24) p.t.c. 159 (del.) wherein the hon'ble delhi high court has been pleased to lay down as under:held, both defendants are working for gain in dina nagar, gurdaspur, punjab. no document worth the name has been filed to show that the defendants are selling their goods in delhi. the plaintiff had produced on record various bills issued by the defendants. although these bills relate to different cities, like cochin, ahmedabad, jammu, madras, madurai etc. not a single bill is produced by the plaintiff which would show the sale of goods by the defendants in delhi. when the defendants are selling the goods in dina nagar, other cities of punjab and so many cities of other states and the plaintiff could procure the bills relating thereof, it is not possible to accept the contention that in delhi defendants are making clandestine sales.there is no office of the plaintiff in delhi nor it is pleaded by the plaintiff.the defendants have categorically pleaded that they are not making any sale in delhi. the plaintiff has not been able to show a single document to the contrary.the plaintiff has not been able to show that it carried on business in delhi. accordingly, averments made in the plaint fail in conferring territorial jurisdiction on this court.the suit is directed to be returned to the plaintiff for presentation to the appropriate court.12. this judgment also has no application as the plaintiff in the present case is having office within the jurisdiction of the district judge, gurdaspur and, therefore, the court has the jurisdiction to entertain the suit in view of section 134 of the trade marks act.13. the learned counsel for the petitioner thereafter placed reliance on the judgment of the delhi high court in the case of state bank of india v. sanjeev malik and ors. : air1996delhi284 , wherein the delhi high court has been pleased to lay down as under:where a plaint is filed in a court having no jurisdiction to try different cause of action and the court decides that it can deal with only one of the causes of action set out in the plaint, then it should retain the plaint and strike out from the plaint that part which it holds is beyond its jurisdiction and then the plaintiff can file another suit in the proper court as to that cause of action so struck off. the entire plaint cannot be returned if the. courts has jurisdiction in regard to a part.14. this plea of the learned counsel for the petitioner also cannot be accepted as in the present case there is no inherent lack of jurisdiction nor it is claimed by the petitioner that part of the claim qua passing of order required to be rejected rather application moved was for rejection of plaint in toto.15. it may be noticed that the district judge does not have jurisdiction to entertain and try the suit filed by the plaintiff respondent qua trade mark and is not case of inherent lack of jurisdiction.16. section 20 of the cpc gives jurisdiction to the court to entertain and try the suit where cause of action wholly or in part arises. as the part of cause of action i.e. the relief with regard to trade marks falls within the jurisdiction of gurdaspur court in view of the provisions of section 134 of the trade marks act, 1999, thus, the court would also have the jurisdiction to entertain and try the claim with regard to passing off as the said claim also arises on account of violation of trade marks as claimed by the plaintiff.there is no merit in the present revision petition.dismissed.
Judgment:

Vinod K. Sharma, J.

1. By invoking the provisions of Article 227 of the Constitution of India read with Section 115 CPC the petitioners have challenged the order dated 26.7.2006 Annexure P-l vide which application moved by the petitioners under Order 7 Rule 11 read with Section 151 CPC for rejection of the plaint, for want of territorial jurisdiction, has been ordered to be dismissed.

2. The respondent-plaintiff filed a suit for infringement of registered trade mark under the Trade Marks Act, 1999 seeking declaration to the effect that the petitioner-defendant their agents, assignees, representatives, employees do not have any right, interest or legal right to sell or market sewing machines, sewing machine stands, tables, bases, covers, motor & ceiling fans, pedestal fans, mono-block pump etc. stablizers & others accessories or any goods by infringing the registered trade name 'Pooja' belonging to the plaintiff under the garb of the name of the defendants business concern 'Puja Mechanical Works' by 'passing off' their product, which are identical and deceptively and phonetically similar to the registered trade Mark 'Pooja' exclusively belong to the plaintiff-respondent. Consequently, relief of permanent injunction was also sought.

3. The plaintiff-respondents have also claimed damages amounting to rupees twenty lacs along with interest @ 18% per annum.

4. On notice having been issued, the petitioner put in appearance and moved an application under Order 7 Rule 1 read with Section 151 CPC for rejection of the plaint for want of territorial jurisdiction. The application was moved by invoking the provisions of Section 20 CPC to contend that neither any cause of action has accrued to the plaintiff respondent within the jurisdiction of Gurdaspur Court nor the defendant petitioner resides within the territorial jurisdiction and, thus, the Court would have no jurisdiction to entertain and try the said suit. The application moved by the petitioner was rejected.

5. The Court held that it is only after the evidence is led that it would be possible for the Court to form an opinion as to whether the petitioner-defendant has sold the goods manufactured by him within the territorial jurisdiction of Gurdaspur and thus violated the provisions of Trade Marks Act, 1999.

6. Mr. R.L. Gupta, learned Counsel appearing on behalf of the petitioner contends that in the suit filed by the plaintiff respondent, no averments have been to the effect that the goods manufactured by the petitioner-defendant have been sold within the territorial jurisdiction of Gurdaspur nor there are any allegations that the petitioner-defendants are carrying on business within the territorial jurisdiction of this Court. The contention of the learned Counsel for the petitioner was that in view of the pleadings in the plaint, the court was not justified in rejecting the application moved by the petitioner.

7. The learned Counsel for the petitioner also contends that under Section 134 of the Trade Marks Act, 1999 suit with regard to infringement of registered Trade Mark or right regarding to register Trade Mark only can be filed in the District Court where the plaintiff resides. However, the claim with regard to 'passing off' is required to be filed in terms of Section 20 of the CPC.

8. The contention of the learned Counsel for the petitioner therefore, was that the relief qua the 'passing off' could not be entertained by the Court of District Judge at Gurdaspur and qua said part the plaint was required to be rejected.

9. It is also the contention of the learned Counsel for the petitioner that as part of claim in suit could not be entertained it was incumbent upon the court to have returned the plaint in toto for presentation in the Court of competent jurisdiction. In support of this contention the learned Counsel for the petitioner has placed reliance on the judgment of Hon'ble Delhi High Court in the case of Dabur India Limited v. K.R. Industries 2006(33) P.T.C. 107 (Del.). In the judgment the Hon'ble Delhi High Court has been pleased to lay down as under:.In the present case a bare perusal of the plaint would show that the suit is based upon alleged infringement of registered trade mark or relating to any right in a registered trade mark or for passing off by the defendant of any trade mark which is identical with or deceptively similar to the plaintiffs, trade mark. Such a suit cannot be entertained by the court at Gazhiabad in view of Section 105 of the Trade and Merchandise Marks Act. The mere fact that the Court may have jurisdiction to entertain the suit with respect to a cause of action under the Copy right Act under Section 62 of the Act can be of no avail. I am, therefore, of the opinion that the Court at Gazhiabad has no territorial jurisdiction to try the suit.

10. However, the judgment relied upon by the learned Counsel for the petitioner has 'no application to the facts of the present case as the Hon'ble Delhi High Court was interpreting Section 105 of the Trade and Merchandise Marks Act and not Trade Marks Act, 1999. Section 134 of the Trade Marks Act, 1999 give jurisdiction to the Court to entertain a petition where the plaintiff is having his business. It is not in dispute that the plaintiff-respondent is having business in Gurdaspur so the authority relied upon by the petitioner is of no help.

11. the learned Counsel for the petitioner thereafter, places reliance on the judgment of the Hon'ble Delhi High Court in the case of Gupta Brothers Conduit Pipe v. Anil Gupta and Anr. 2001(24) P.T.C. 159 (Del.) wherein the Hon'ble Delhi High Court has been pleased to lay down as under:

Held, both defendants are working for gain in Dina Nagar, Gurdaspur, Punjab. No document worth the name has been filed to show that the defendants are selling their goods in Delhi. The plaintiff had produced on record various bills issued by the defendants. Although these bills relate to different cities, like Cochin, Ahmedabad, Jammu, Madras, Madurai etc. not a single bill is produced by the plaintiff which would show the sale of goods by the defendants in Delhi. When the defendants are selling the goods in Dina Nagar, other cities of Punjab and so many cities of other States and the plaintiff could procure the bills relating thereof, it is not possible to accept the contention that in Delhi defendants are making clandestine sales.

There is no office of the plaintiff in Delhi nor it is pleaded by the plaintiff.

The defendants have categorically pleaded that they are not making any sale in Delhi. The plaintiff has not been able to show a single document to the contrary.

The plaintiff has not been able to show that it carried on business in Delhi. Accordingly, averments made in the plaint fail in conferring territorial jurisdiction on this Court.

The suit is directed to be returned to the plaintiff for presentation to the appropriate Court.

12. This judgment also has no application as the plaintiff in the present case is having office within the jurisdiction of the District Judge, Gurdaspur and, therefore, the Court has the jurisdiction to entertain the suit in view of Section 134 of the Trade Marks Act.

13. The learned Counsel for the petitioner thereafter placed reliance on the judgment of the Delhi High Court in the case of State Bank of India v. Sanjeev Malik and Ors. : AIR1996Delhi284 , wherein the Delhi High Court has been pleased to lay down as under:

Where a plaint is filed in a Court having no jurisdiction to try different cause of action and the Court decides that it can deal with only one of the causes of action set out in the plaint, then it should retain the plaint and strike out from the plaint that part which it holds is beyond its jurisdiction and then the plaintiff can file another suit in the proper Court as to that cause of action so struck off. The entire plaint cannot be returned if the. courts has jurisdiction in regard to a part.

14. This plea of the learned Counsel for the petitioner also cannot be accepted as in the present case there is no inherent lack of jurisdiction nor it is claimed by the petitioner that part of the claim qua passing of order required to be rejected rather application moved was for rejection of plaint in toto.

15. It may be noticed that the District Judge does not have jurisdiction to entertain and try the suit filed by the plaintiff respondent qua trade mark and is not case of inherent lack of jurisdiction.

16. Section 20 of the CPC gives jurisdiction to the Court to entertain and try the suit where cause of action wholly or in part arises. As the part of cause of action i.e. the relief with regard to trade marks falls within the jurisdiction of Gurdaspur Court in view of the provisions of Section 134 of the Trade Marks Act, 1999, thus, the court would also have the jurisdiction to entertain and try the claim with regard to passing off as the said claim also arises on account of violation of Trade Marks as claimed by the plaintiff.

There is no merit in the present revision petition.

Dismissed.