Delhi District Court
M/S Puneet Industrial Controls vs M/S Classic Electronics & Anr on 8 October, 2012
1
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 1
TIS HAZARI COURTS, DELHI.
C.S. No:. 59/2012
M/s Puneet Industrial Controls
Pvt. Ltd. & Anr.
...Plaintiffs
Versus
M/s Classic Electronics & Anr.
...Defendants
Order 7 Rule 11 CPC
ORDER:
1. This is an application U/o 7 Rule 11 CPC filed by the defendant seeking rejection of plaint.
2. I have heard Sh. S. K. Bansal, Ld. Counsel for the defendant/applicant and Sh. R. P. Sharma, Ld. Counsel for the plaintiff/non applicant.
Defendant's Arguments
3. The trial court can exercise the powers under Order 7 Rule 11 CPC at any stage. The case of Saleem Bhai vs. State of Maharashtra JT 2002(10) SC 558 has been relied upon on this aspect. C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 1 of 26 2
4. In Azhar Hussain vs. Rajiv Gandhi 1986(Supp) SCC 315 it has been held that a litigation which is meaningless and bound to prove abortive should not be permitted to occupy the time of the Court.
5. For the purpose of examination of plaint U/o 7 Rule 11 CPC, the averments of plaint have to be presumed as true. This applies to the plaintiff as well as to defendant and none can come out of what has been set up in the plaint.
6. The application for rejection of plaint is having its genesis in the subsequent changes in law which has rendered the suit being barred by law.
7. The present suit has been filed by plaintiff claiming rights in electronic relay products having unique electric and electronics circuits and design layout printed on circuit boards (PCB) and allegedly developed, designed and being used by the plaintiff commercially. These are in fact semiconductor integrated circuits within the meaning of section 2 (r) of the Semiconductor Integrated Circuits LayoutDesign Act, 2000 (hereinafter 'the SICLD Act'). These are products having transistors and other circuitry elements which are inseparably formed on an insulating material viz. PCB and C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 2 of 26 3 are designed to perform electronic circuitry functions and consequent use. This entire layout is a layout design within the meaning of the SICLD Act.
8. The Copyright Act is a creation of Legislature and the rights created under it are so recognized because the statute has created them as such. Copyright cannot be claimed as a common law right. On this aspect the judgment of Time Warner Entertainment Company vs. RPG Netcom AIR 2007 DELHI 226 has been relied upon. The Legislature can alter, increase or abrogate the rights. Plaintiff cannot claim a vested right in any right created under a statute. In Trimbak Damodar Rapurkar vs. Assaram Hiraman Patil AIR 1966 SC 1758 existing and vested rights have been distinguished. As the Copyright Act is not based in equity so the plaintiff has no vested right. In the course of time various IPRs have been recognized and the list is ever expanding. Various legislations dealing with various IPRs are mutually exclusive.
9. It is the duty of the Court to take notice of change in law and the law as applicable on the date of application is relevant. In Sudhir G. Angur and others Vs. M. Sanjeev and others (2006) 1 SC 141 it has been held that the Court is bound to take notice of changes in law and C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 3 of 26 4 is bound to administer the law as it was when the suit came up for hearing. In Bai Dosabai Vs. Mathurdas Govinddas and others AIR 1980 SC 1334 it has been held that events and changes in the law occurring during the pendency of legal proceedings are required to be taken into consideration in order to do complete justice between the parties and so that a futile decree may not be passed. On this aspect other judgments relied upon are Ayyappan Kurup Krishna Pillai Vs. Parukutty Amma Subhadra Amma AIR 1971 Kerala 44; Pasupuleti Venkateshwarlu vs. The Motor & General Traders AIR 1975 SC 1409.
10. Section 15 (2) of the Copyright Act states that copyright in any design which is capable of being registered under the Designs Act but has not been so registered shall cease as soon as any article to which the design has been applied has been produced more than 50 times by an industrial process by the owner of the copyright or with his licence by any other person. Thus as per this section it is not a case of the Art Work vs. the Art Work. It is a case of application of the design which brings into existence finished articles. Even from the statement of plaint finished articles have been alleged to have been produced by the C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 4 of 26 5 defendant. This is further made explicit by the reply to the instant application.
11. No Act is a 'Special Act' in itself. An Act may become a 'Special Act' only when it is seen visàvis any other Act. On this yardstick the SICLD Act is a 'Special Act' visavis the Copyright Act which is a general statute, on this relative aspect. In Ethiopian Airlines vs. Ganesh Narain Saboo (2011) 8 SCC 539 it has been held that specific statutes that come later in time supersede prior general statute as the Legislative intention is to exclude older and general statutes by more recent and special statutes. Case of Darshan Singh vs. Ram Pal Singh AIR 1991 SC 1654 has been relied upon to cite that retrospective effect is not to be given to an Act, unless the Legislature made it so by express words or necessary implication.
12. Case of Microfibres Inc. Vs. Girdhar & Co. & Anr., 2009(6) R.A. J. 106 (Del.) is an authority on the aspect that for the product of the plaintiff, in order to qualify as an artistic work, it must fall within the subsection (c) of the Section 2 of the Copyright Act. In the present case, reading the plaint as a whole and in a meaningful manner the objective is to put the artistic work into industrial use. The article C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 5 of 26 6 is industrial and is unable to stand by itself as a piece of art. The definition of 'semiconductor integrated circuits' as given under section 2(r) of and 'layout design' under section 2(h) read with section 7 of the SICLD Act specifically shows that the layout design is capable to being registered. In that view of the matter the suit is barred by law as the relief claimed has become nonest.
13. The last limb of argument is of valuation of suit. Though this has not been taken as a ground in the application by the defendant, it has become available by virtue of para 13 of the plaintiff's reply to the application wherein the plaintiff has alleged that he has suffered loss of over Rs. 50 lakhs on account of the acts of the defendant. Case of Pfizer Products, Inc. vs. B. L. & Co. 2007 (34) PTC 294 (Del.) is relevant wherein it has been held that where only accounts have been claimed but the damages have not been quantified the case may be different, but once the damages have been quantified the suit is to be valued accordingly. Thus if the suit is properly valued, as per the quantified damages, it exceeds the pecuniary jurisdiction of the Court.
Plaintiff's Arguments
14. While refuting the arguments of the defendant, it is submitted C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 6 of 26 7 that the application is misconceived and does not call for any indulgence by the Court.
15. The settled position of law is that it is only the averments made in the plaint that are relevant and the conclusion that the suit is barred under any law must be drawn from the averments made in the plaint. The law propounded in Kamala & Ors Vs. K. T. Eshwara Sa & Ors AIR 2008 SC 3174 has been relied upon on this aspect. Another case relied upon is Kapildeo Prasad & Anr. Vs. Ramanand Prasad & Ors. AIR 2007 Patna1 on the same aspect.
16. In Popat and Kotecha Property Vs. State Bank of India Staff Association, (2005) 7 SC cases 510 the test laid down is that Order 7 Rule 11(d) applies only when the statement as made in the plaint without any doubt or dispute shows that suit is barred by any law in force. Order 7 Rule 11 cannot be applied in disputed questions of law and facts.
17. The judgment of Harsh Gandhi Vs. Thakar Dass Thakkar & others 187 (2012) Delhi Law Times 212 has been relied upon to cite that Court is not competent to make detailed inquiry into doubtful or complicated questions of law or fact under Order 7 Rule 11 CPC. C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 7 of 26 8
18. In Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others, (2004) 3 SC 137 it has been held that for application of the Order 7 Rule 11(a) and (d) CPC the averments of plaint are germane and the pleas taken in the written statement are wholly irrelevant. Another judgment relied upon on this aspect is Loona Ram alias Babu Law Vs. Rameshwar Lal, AIR 2009 Rajasthan
142.
19. In Sadhana Rai & Anr. Vs. Bimla Rai & Ors, 155 (2008), Delhi Law Times 496 (DB) it has been held that once cause of action is deduced on the basis of pleadings in plaint, whether plaintiffs are likely to succeed on the basis of the said cause of action or whether it affords strong case in their favour is not an aspect which requires inquiry at the stage of Order 7 Rule 11 CPC. On this aspect the judgment in Maqsood Ali Vs. Kamil Faridi, 181 (2011) Delhi Law Times 486 has also been relied upon. In Manjeet Singh Anand (Sh.) Vs. Sh. Sarabit Singh Anand & Ors, 2009 IX AD (Delhi) 113 it has been held that mere fact that the case of the plaintiff is weak and is not likely to succeed is no ground for ousting the plaintiff at this stage. The plaintiff is also supported by the judgment in Avtar Singh Narula C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 8 of 26 9 & Anr. Vs. Dharambir Sahni & Anr. AIR 2009 Delhi 177 which has held that when there are triable issues involved wherein evidence is required, the plaint is not liable to be rejected. Another judgment relied upon on this aspect is Kishore Kumar Agrawalla & Ors. Vs. Ashish Agrawalla, AIR 2011 Jharkhand 113.
20. The defendant cannot derive any advantage and cannot plead a case which has not been set up in the pleadings.
21. The case of Rajesh Masrani Vs. Tahiliani Design Pvt. Ltd., AIR 2009 Delhi 44 has been relied upon to cite that when it is the admitted case of the parties that the plaintiff is not holding any registration under the Designs Act, it is clear that Section 15 (1) of the Copyright Act is not applicable in the facts and circumstances of the present case; section 15(2) of the Copyright Act is applicable to the copyright in any design capable of being registered under Designs Act, 1911 but has not been registered and the copyright in the said design cease to exist as soon as any article to which the design has been applied has been reproduced more than 50 times by an industrial process.
22. The question whether the article to which the design has been C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 9 of 26 10 applied has been reproduced more than 50 times by an industrial process is a question of fact which requires to be tested by trial and the same cannot be considered in inquiry under Order 7 Rule 11 CPC. The plaintiff has not made any such admissions in the plaint. Conjectures and surmises cannot be resorted to.
23. The works claimed to be 'artistic work' under the Copyright Act and 'layout design' under the 'the SICLD Act' are poles apart without an iota of similarity. The IC's are not complete circuits but a partcircuit whereas the plaintiff's products are complete circuits and the plaintiff also uses IC's in their circuit as components. In the case of plaintiff the section 2(r) of and 'layout design' under section 2(h) read with section 7 of the SICLD Act are not attracted.
24. The statement as to the loss of Rs. 50 lacs as stated in the reply of the plaintiff has no bearing on the matter as the same is not a statement made in the plaint.
25. The application as filed by the defendant is with an intention to waste the judicial time. The defendant has filed similar applications which have been dismissed by the Hon'ble High Court of Delhi vide C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 10 of 26 11 orders dated 20.05.1996 and 04.08.1996 and the defendant's challenge by way of Special Leave Petition in the Hon'ble Supreme Court of India has also remained unsuccessful. The present application be dismissed with exemplary costs.
Findings & Reasons
26. I have considered the rival arguments and taken myself through the material on records.
27. While testing a plaint on the touchstone of Order 7 Rule 11(a) of the Code of Civil Procedure, the following considerations are axiomatic:
1. The plaint alone has to be seen.
2. The averments made in the plaint have to be taken as correct and at the face value as they are germane. At the stage of considering an application U/O 7 rule 11 CPC the court cannot venture into an enquiry into the truth or falsity of the averments made in plaint because that is the subject matter of trial.
3. The plaint must be read as a whole.
4. The plaint must be read in a meaningful manner to find the real intent behind the suit.
C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 11 of 26 12
5. The documents filed along with the plaint can also be looked into.
6. The rival averments or defense(s) made in the written statement are immaterial for this limited inquiry.
28. The definition of a "semiconductor integrated circuit" as given SICLD Act reads as under:
"2 (r) "semiconductor integrated circuit" means a product having transistors and other circuitry elements which are inseparably formed on a semiconductor material or an insulating material or inside the semiconductor material and designed to perform an electronic circuitry function"
29. The definition of a "layout design" as given SICLD Act reads as under:
"2(h) "layoutdesign" means a layout of transistors, and other circuitry elements and includes lead wires connecting such elements and expressed in any manner in a semiconductor integrated circuit."
30. The relevant portion of the judgment Microfibres Inc. Vs. Girdhar & Co. & Anr., 2009(6) R.A. J. 106 (Del.) cited by the defendant reads as under: C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 12 of 26 13 "21. The rights to which a holder of an original artistic work is entitled are enumerated in Section 14(c) of the Copyright act. These are, the right:
(i) To reproduce the work in any material form including depiction in three dimensions of a two dimensional work or in two dimensions of a three dimensional work;
(ii) To communicate the work to the public;
(iii) To issue copies of the work to the public not being copies already in circulation.
(iv) To include the work in any cinematograph film;
(v) To make any adaptation of the work;
(vi) To do in relation to an adaptation of the work any of the acts specified in relation to the work in subclauses (i) to (iv)
22. Therefore, it is the exclusive right of the holder of a Copyright in an original artistic work to reproduce the work in any material form. For example, a drawing of an imaginary futuristic automobile, which is an original artistic work, may be reproduced in the threedimensional material form using an element, such as a metal sheet. When the copyright holder of an original artistic work reproduces the same in another material form, he may, or may not do so by employing an industrial process or means which may be manual, mechanical or chemical, separate or combined, on an article. If the reproduction of the original C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 13 of 26 14 artistic work is done by employing an industrial process, as aforesaid, on an article, and the same results in a finished article which appeals to the eye as adjudged solely by the eye, then the features of shape, configuration, pattern, ornament or composition of lines or colours applied to the article by the industrial process constitutes a ―design‖, within the meaning of this expression as defined under the Designs Act. 23. There is, therefore, a clear distinction between an original artistic work, and the design derived from it for industrial application on an article. This position is clarified by the use of the expression ―only before the words ―the features of shape, configuration, pattern, ornament or composition of lines or colours in the definition of ―design in the Designs Act. Therefore, the original artistic work, which may have inspired the creation of a design, is not merely the feature of shape, configuration, pattern, ornament or composition of lines or colours which are created to apply to an article by an industrial process. The original artistic work is something different from the design. Secondly, the definition of ―design expressly excludes, inter alia, any artistic work defined in section 2(c) of the Copyright act, 1957.
24. It needs to be emphasized that it is not necessary that in every case design has to be preceded by an artistic work upon which it is C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 14 of 26 15 founded. A craftsman may create a design without first creating a basic artistic work. This may best be illustrated by a weaver who may straightaway create a design while weaving a shawl, which product could be created even without the basic artistic work. 25. Whether or not a design is preceded by an original artistic work, a design would, in its own right qualify to be termed as an artistic work within the meaning of Section 2(c) of the Copyright Act. This is so because the expression 'artistic work' as defined in Section 2(c) of the Copyright Act bears a wide definition to mean a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality. However, the design may or may not enjoy a copyright protection under the Copyright Act, depending on whether it is an 'original artistic work' or not.
26. The expression ―copyright in any design used in Section 15(2) means the copyright as understood under the Copyright Act, and not under the Designs Act. This is evident from the expression ―copyright shall not subsist under this Act......used in subsection (1) of Section 15. However, copyright in an artistic work subsists provided it is an original artistic work. Therefore, there can be no claim for Copyright under the Copyright Act in an artistic work which does not C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 15 of 26 16 have the quality of possessing originality. The holder of a copy of an original artistic work cannot claim copyright protection. Therefore, to be entitled to protection under the Copyright Act, the design should have originality. That is not to say that if the design is not entitled to copyright protection under the Copyright Act, on account of it not possessing originality visàvis the original artistic work, the design does not require, or cannot be granted registration under the Designs Act for it to be entitled to protection under the Designs Act. 27. Under the Designs Act, a copyright has a different connotation from a copyright under the Copyright Act. Under the Designs Act, copyright means the exclusive right to apply the design to any article in any class in which the design is registered.
28. The issue with regard to the extent of, and the conditions for the copyright protection to such an artistic work, as an artistic work under the Copyright Act, which is a design registered or capable of registration under the Designs Act, is what is dealt with, by section 15 of the Copyright Act. Once the distinction between the original artistic work and the design derived from it, and the distinction between Copyright in an original artistic work under the Copyright Act, and a copyright in a design under the Designs Act is C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 16 of 26 17 appreciated, the meaning and purport of section 15 of the Copyright Act becomes clear.
29. Section 15 of the Copyright Act is in two parts. The first part i.e. subsection (1) states that copyright shall not subsist under the Copyright Act in any design which is registered under the Designs Act. Consequently once the design is created and got registered under the Designs Act, whether or not the design is eventually applied to an article by an industrial process, the design loses its protection as an artistic work under the Copyright Act. Therefore, subject to whatever rights that are available under the Designs Act, the registered design holder cannot claim protection or complain of copyright infringement in respect of the registered Design under the Copyright Act.
30. Subsection (2) of section 15 deals with the situation where the design, which is capable of being registered under the Designs Act, is not so registered. It provides that copyright in such a design shall cease as soon as any article to which the design has been applied has been reproduced more than 50 times by an industrial process by the owner of the copyright or with his licence, by any other person. It is clear to us that the Parliament in Section 15 of the Copyright Act was dealing with the aspect of copyright in a registered/registrable design, as understood in the Copyright Act and not the Designs Act. Else, there was no need to deal C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 17 of 26 18 with this aspect in the Copyright Act. The same would have been dealt with under the Designs Act. Therefore, the law tolerates only a limited industrial, or shall we say commercial, exploitation of the original artistic work by the application/reproduction of the said work in any other form or reproduction of copies thereof in exercise of the rights under Section 14(c)(1) and 14(c)(iii) of the Copyright Act. Beyond the specified limit, if the design derived from the original artistic work is exploited (i.e. if the design is applied more than 50 times by an industrial process on an article) the copyright in the design ceases unless it is registered under the Designs Act.
31. We are also of the view that it is not correct on behalf of the appellant to urge that the intention of the creation of the work determines the Intellectual Property Rights contained therein, and not whether such work fell within the classification of ―Designs under the Designs Act or the Copyright Act. The Designs Act nowhere stipulates the intention of the creator of the work as a determinative criteria and the exhaustive definition given not only in the Designs Act but indeed the Copyright Act clearly rules out such interpretation as suggested by Shri Raju Ramachandran. In fact, the appropriate occasion to evaluate the registrability of a design would arise when the C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 18 of 26 19 artistic work is translated into an object having features of shapes, configuration, pattern, ornament or composition of lines or colors whether two dimensional or three dimensional by employing an industrial process. Significantly, the appellant themselves have registered their product under the Designs Act in U.K. Furthermore, as submitted by the appellant, even if there is very little variation between the original artistic work and the design which is industrially applied to an article to produce a product, nevertheless, such a design can claim registration under the Designs Act, provided such registration was sought. The interpretation suggested by the appellant would clearly afford not only the design protection in case of registered works but also in addition, the copyright protection to the works which were industrially produced, which interpretation does not reflect the legislative intent.
32. A perusal of the Copyright Act and the Designs Act and indeed the Preamble and the Statement of Objects and Reasons of the Designs Act makes it clear that the legislative intent was to grant a higher protection to pure original artistic works such as paintings, sculptures etc and lesser period of protection to design activity commercial in nature. The period of copyright would be the author's life span plus 60 years. However, the legislature has allocated a lesser time span for the C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 19 of 26 20 protection available to a registered design as only being 15 years. Thus, commerce and art have been treated differently by the Legislature and any activity which is commercial in nature has been granted lesser period of protection. On the other hand, pure artistic works per se have been granted a longer protection."
31. From the above discussion, it is apparent that the list of IPRs is ever increasing with the advent of technology. It is also apparent that various IPRs are mutually exclusive. Thus one subject matter of IPR cannot get a longer protection or dual protection. However, these are aspects of law and what is relevant in the present inquiry is as to what the plaint discloses and whether the plaintiff can be nonsuited under Order 7 Rule 11 CPC.
32. Considering the case law cited by the parties, it is very much clear that it is the duty of the Court to take cognizance of the changes in law. However while considering a plaint at the altar of the Order 7 Rule 11 CPC, considering the plaint for rejection, it must be crystal clear that reading the plaint as a whole does not disclose a cause of action or from a statement contained in the plaint it is barred by any law. This must be obvious on the face of the plaint unequivocally. C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 20 of 26 21 Rejection of plaint cannot be done on surmises and conjectures. If there is a room for doubt, then it must be resolved in favour of sustaining the plaint rather than rejecting it.
33. A plaint cannot be read as words of a statute. It is obvious that the kind of astuteness which goes into while drafting a statute is not exhibited while drafting a plaint. It has been noted by the Courts in various judgments that in our country the pleadings are loosely drafted. In Ram Sarup Gupta v. Bishun Narain Inter College AIR 1987 SC 1242 it has been held that "...The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 21 of 26 22 pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal..."
34. Obviously SICLD Act had not been in existence when the suit had been instituted by the plaintiff. Thus the plaintiff is not to be perceived as a visionary who could have seen into the future and drafted its plaint accordingly. To consider that the provisions of SICLD Act are applicable it is to be held that the IPRs projected by the plaintiff are 'semiconductor integrated circuits' or 'layout designs'. This aspect cannot be read into the plaint, and being a factual aspect necessarily requires evidence or trial. Though the defendant has not raised such a defence in its written statement and even otherwise under Order 7 Rule 11 CPC a defence cannot be considered, the fact remains that it cannot be unequivocally stated that the plaint, as it has been presented, is barred by any law from a statement made in the C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 22 of 26 23 plaint. It is a fit case where the parties must be afforded an opportunity to test the rival facts on the altar of evidence, rather the rejecting the plaint on doubtful premises.
35. In my view, no case for rejection of plaint is made out on the ground of being barred by law.
36. The next question is of valuation. What is the valuation of the plaint for the relief/jurisdiction is the moot question.
37. The para 13 of the reply of plaintiff to the defendant's application under Order 7 Rule 11CPC reads as under: "Para no. 13 of the application is wrong, false and specifically denied. It is submitted that the defendants have been encroaching upon the rights and properties (Copyright Work) of the plaintiff and have caused a loss to the tune of Rs.50 lacs to the plaintiff."
38. On the other hand, the relevant para of the plaint visàvis the valuation of the suit as given in the plaint reads as under: "Relief (d) in the plaint is valued for a purpose of court fee at Rs.1000/ (one thousand) only and court fee of Rs. 150/ is paid thereon. The jurisdictional value of this relief (d) is fixed at Rs. 6 lakhs only and the plaintiff bonafide undertakes C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 23 of 26 24 to pay additional court fees upon completion of the enquiry and rendition of account by the defendants when the exact amount due to the plaintiff is ascertained.
For inquiry regarding the loss occasioned to the plaintiff as a result of the infringement of plaintiffs copyright by the defendants and for a decree for such amount as may be found due upon such inquiry and for rendition of accounts into the illegal profits made by the defendants as a result of such infringement of copyright of the plaintiff."
39. The moot question is what is the true valuation of the suit and whether the statement made in the para 13 of the reply of plaintiff to the defendant's application under Order 7 Rule 11 CPC has any bearing on the valuation of the suit.
40. I find my answer to the above in the law pronounced in R Kaushalendra Rao and Others Vs. Tukaram Nilkanth Oke & Others AIR 1956 Nagpur 195 in which it has been held: "39. That brings us to the second question. Again, in our opinion, the words in the statute itself provide the answer. It will be seen that under c.
(d) of R. 11 of O 7, Civil P.C. the court can reject the plaint only where the suit appears from the statement in the plaint to be barred by any law. No C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 24 of 26 25 such restriction is placed on the court in exercising its powers under cls. (b) and (c) of that rule. There is no reason to suppose that the court cannot look into admissions made by the plaintiff otherwise than in the plaint while considering the question of correct valuation of the relief sought. On the contrary, in the absence of any restriction in cls.
(b) and (c) of the rule, it is reasonable to assume that the court has power to look into statements other than those contained in the plaint in considering the question of correct valuation of the relief sought. (Underlining is mine)
40. We are aware of a number of cases of this court where it is stated that in considering the question of valuation the statement in the plaint only must be looked into and not the allegations in the written statement. They are 'Mangia V. Sakia', 1940 Nag 331 (AIR V27) (T), 'Ganpatrao V. Shamrao', 1941 Nag 138 (AIR V28) (U) 'Goswami Rameshpur V. Madhukar', 1953 Nag 276 (AIR V40) (V) 'Wasudeo V. Nanibal, Civil Revn no. 623 of 1948 (Nag) (W) 'Atmaram v. Sitaram' C. R. no. 444 of 1949 (Nag) (X) and Sunderlal Vs. Udhao' C.R. no. 275 of 1953 (Nag) (Y).
41. But it is to be noted that in none of these cases, except one, the court was called upon to decide whether it could look into admissions of the plaintiff otherwise than those made by him in the plaint. That case is 'Sunderlal V. Udhao' (Y) C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 25 of 26 26 (supra). In that case the plaintiff tentatively valued his claim at Rs.1,000/ and later put in a memorandum claiming Rs.3,440/ from the defendant."
41. Thus from the above pronunciation of law, it is clear that the plaintiff cannot escape the consequences of his statement made in the para 13 of the reply of plaintiff to the defendant's application under Order 7 Rule 11 CPC. Thus the suit is undervalued. On proper valuation of Rs.50 lacs the plaint would be liable to be returned. It is directed accordingly.
42. Nothing stated herein shall tantamount to an expression of opinion on the merits of the case.
43. The application stands disposed of accordingly. Announced in the Open Court On this 08th day of October, 2012 (MAN MOHAN SHARMA) ADJ (Central)1, Delhi C.S. 59/2011 Puneet Industrial Controls vs. Classic Electronics Page 26 of 26