Delhi District Court
M/S. L'Oreal vs . Heena Kangan Store / Defendant No. 4 on 12 October, 2015
M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4
In the Court of Additional District Judge02, South District, Room No. 602,
Sixth Floor, Saket Courts Complex, New Delhi
In the matter of :
TM No. 150/2011
Unique ID No. 0206C0316542011
M/s. L'Oreal,
14, Rule Royale, 75008, Paris, France.
through - Ms. Surbhi Bansal, Constituted Attorney
.... Plaintiff
Versus
1. Rajesh Kakkar, M/s. Beauty Palace,
37, Moti Bazar, Bhawani Complex, 1st Floor,
Dehradun (Uttrakhand).
2. Ravinder General Store,
88, Jhanda Bazar, Dehradun (Uttrakhand).
3. .............name dropped
(of Vijay Aggarwal, Proprietor,
Shri MBS Agencies, 124, Khooni Gali, Jhanda Bazar,
Dehradun248001 (Uttrakhand).
4. Heena Kangan Store,
Saharanpur Chowk, Kawali Road,
1, Dehradun (Uttrakhand).
5. R.C. Fancy Store,
103, Paltan Bazar, Dehradun (Uttrakhand).
.... Defendants
Date of filing : 16.12.2011
Date of Institution : 17.12.2011
Decision reserved on : 28.09.2015
Date of Decision : 12.10.2015
TM No. 150/2011 Page 1 of 18
M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4
JUDGMENT
(in respect of defendant no. 4, on suit under section 134 & 135 of the Trade Marks Act, 1999, Section 55 of the Copyright Act, 1957 for Permanent Injunction restraining infringement, Passing Off, Delivery Up, Rendition of Accounts, etc.)
1. Plaintiff M/s. L'Oreal of Paris, France is a company incorporated and Ms. Subhi Bansal is its constituted Attorney (vide Resolutioncum Authority is now Ex. PW1/12), is engaged in the business of manufacture, distribution and sale of a wide range of hair care, skin care, toiletries, and beauty products including perfumery preparations, essential oils, cosmetics, preparations for colouring and bleaching the hair, hair dyes and tints, preparations for waving and setting the hair, shampoos, hair sprays, non medicated preparations for the care and the beauty of the hair and of the Skin, toilet soaps, dentifrices, sun tan preparations, personal deodorants and other allied/related products.
2. The plaintiff is proprietor of trade mark L'OREAL, which is duly registered as enumerated in paragraph 6 of the plaint, which reads as under : i. L'OREAL (Word Mark), Registration No. 165778 (14.09.1954), class 03, registered valid and effective.
ii. L'OREAL (Label), Registration No. 473298 (08.06.1987), class 03, TM No. 150/2011 Page 2 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 registered, renewed, valid and effective.
iii. L'OREAL PROGRESS (Work Mark), Registration no. 499858 (25.10.1988), class 03, registered, renewed, valid and effective. iv. L'OREAL Plentitude (Word Mark), Registration No. 477223 (20.08.1987), class 03, registered, renewed, valid and effective. v. L'OREAL SOLAR EXPERTISE, Registration No. 1493028 (04.10.2006), class 03, registered, valid and effective. vi. L'OREAL PREFERENCE, Registration No. 1493024 (04.10.2006), class 03, registered, valid and effective.
vii. L'OREAL ULTRA VOLUME COLLAGEN, Registration No. 1714865 (28.07.2008), class 03, registered, valid and effective. viii.L'OREAL EXTRA VOLUME COLLAGENE, Registration No. 1778491 (28.01.2009), class 03, registered, valid and effective. ix. L'OREAL STRAIGHT PERFECT, Registration No. 1832958 (25.06.2009), class 03, registered, valid and effective. x. L'OREAL (Label), Registration No. 1836274 (03.07.2009), class 03, registered, valid and effective.
xi. L'OREAL 5 PROBLEMS 1 SOLUTION, Registration No. 1887201 (20.11.2009), class 03, registered, valid and effective. xii. L'OREAL, Registration No. 1832961 (25.06.2009), class 18, registered, valid and Effective.
3. Moreover, the plaintiff also applied for registration of the said trade mark L'Oreal in over 100 countries of the world and across all continents and regions. Most of the said applications have been allowed and registration in respect thereof are subsisting on the respective registers of the respective countries. The art work involved in the plaintiff's various L'Oreal TM No. 150/2011 Page 3 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 stylized, formative/ bearing and labels are original artistic work and plaintiff holds copyright therein. The plaintiff's trademark / trade name has acquired goodwill, reputation, even at the international markets; the plaintiff's mark has become distinctive, associated and acquired secondary significance with the plaintiff and plaintiff's goods and businesses. The plaintiff's trade name / trademark is one of the oldest, most prominent and valuable trademark / trade name. The plaint further narrates that the plaintiff invests heavily in research and development as well as in advertisements, it also carries business electronically and through ecommerce.
4.1 The defendants no. 1 to 5 are engaged in the trading of cosmetics, toiletries, hair care products and other allied goods, they are in collusion and connivance of each other, which could be disclosed by them on appearance. The defendants have adopted and started using the trade mark L'Oreal in relation to the plaintiff's good , some of plaintiff's product are shown in the specimens (now Ex. PW1/1 to Ex. PW1/7). The defendants are also writing 'Paris' along with this and using the same trade mark along with the impugned mark in order to give a false description to their impugned goods (its specimens are now Ex. PW1/8 to Ex. PW1/10A).
The defendants have also copied the artistic feature involved in TM No. 150/2011 Page 4 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 the plaintiff's trade mark and are thus infringing the plaintiff's copy rights involved in its said trade mark. The defendant are using all kind of false description on its impugned goods to wrongly link the impugned goods with that of the plaintiff and to wrongly convey to the public and customers that the impugned goods are coming from the source and origin of the plaintiff. The impugned goods and business thereunder are also of the same/similar/allied/ cognate goods to that of the plaintiff's.
4.2 The defendants are infringing the plaintiff's trademarks, which is duly registered (the legal proceeding certificates are now Ex. PW2/1). The defendants cannot even be exonerated from the charges of falsifications, unfair and unethical trade practices.
4.3 The plaintiff is suffering losses of business and reputation because of use of plaintiff's mark by the defendant, such losses are incapable of being assessed in monetary terms, even unwary purchasers are being deceived as to the origin of goods or business, consequently, the plaintiff is being put to losses by the defendants and the defendants are liable to render their accounts to the plaintiff and to make good to the plaintiff of the profits and business earned by them.
TM No. 150/2011 Page 5 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 4.4 The cause of action arose in the last week of November, 2011, when the plaintiff came across in South Delhi the defendant's impugned goods bearing the impugned trade mark. The plaintiff caused an inquiry, it revealed that the defendants in November 2011 adopted and starting using the impugned trade mark/label in respect of said goods. The cause of action is still continuing and is accruing day by day and shall continue to so accrue till the defendants cease with their impugned adoption and user. Lastly, the paragraph 29 of the plaint enumerates name of special agent / dealer M/s. Anand Enterprise of Gautam Nagar, New Delhi, besides plaintiff's licensee L'Oreal India Private Limited, Bombay's office at M/s. Navbharat Enterprise at Village Saidullajab, South Delhi where it has been carrying business vis avis paragraph 31 that the defendants are supplying the goods in the South Delhi, consequently, the Court at South Delhi has jurisdiction to try the suit. 5.1 The summons to suit were issued to all the defendants no. 1 to 5, on the day when exparte order dated 04.01.2012 was issued in favour of the plaintiff and against all the defendants by the Ld. Predecessor. Moreover, a Local Commissioner was also appointed to seize all products and make an inventory of articles like molds, packaging material, pouches, cartons, blocks, TM No. 150/2011 Page 6 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 containers, display boards, sign boards, advertising material, dyes or blogs, semifinished / unfinished products, packed / unpacked wrappers etc. bearing the trademark in relation of L'oreal. The Local Commissioner Shri Brijesh Kumar, Advocate executed the commission and furnished his reports in respect of defendants no. 1, 2, 4 and 5, by elaborating that commission was not executed in respect of defendant no. 3, as counsel for plaintiff company informed him that defendant no. 3 was in possession of original products of plaintiff company and there was no point in visiting and searching the premise of defendant no. 3.
5.2 The defendants no. 1, 2 and 5 put their appearance, however, the defendant no. 4 was not served. On 2.3.2012 the defendants no. 1, 2 and 5 entered into compromise with the plaintiff, consequently, their statements were recorded and suit was disposed off qua defendants no. 1, 2 and 5. The plaintiff dropped the suit in respect of defendant no. 3 as per proceedings dated 02.03.2012.
5.3 The defendant no. 4 could not be served at the given address, consequently, it was directed to be served by way of substituted service of publication, thence, summons were published in the Rashtriya Sahara, TM No. 150/2011 Page 7 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 Dehradun Edition dated 18.09.2013 for 17.10.2013, however, for want of appearance of defendant no. 4, it was proceeded exparte on 17.10.2013. Thence, case was put to exparte evidence, for want of leading evidence, the plaintiff was given final opportunity and lastly, it result into recording of ex parte evidence.
6. At the juncture of exparte plaintiff's evidence qua defendant no. 4, Ms. Surbhi Bansal / PW1, author of the plaint, stepped into the witness box and plaintiff also got examined PW2 Shri Vinay Kumar, Data Entry Operator, Trade Mark Registry (to prove legal proceeding certificates Ex. PW2/1 in respect of trademark L'Oreal). Firstly, PW2 was got examined and then PW1 stepped into the witness box. PW1 one has deposed if the case is pending against all the defendant, whereas it was pending for evidence against defendant no.4. But record/material of seized articles was called or proved. On 07.11.2014, the evidence was closed.
7.1 The case was adjourned for final submissions, however, oral submissions were not made, ultimately, written arguments have been filed by the plaintiff duly supplemented orally. It is reiteration of facts, evidence and law, to highlight that the defendant no. 4 has infringed plaintiff's trademark TM No. 150/2011 Page 8 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 and defendant no. 4 is liable to be restrained by decree of injunction as well as to direct him to pay the damages. The testimony of PW1 remained unchallenged visavis she has proved the case of plaintiff, the defendants are guilty of infringement and passing off in terms of Sections 28 and 29 of the Trade Marks Act, 1999. Ld. counsel supplements and derives reasons from the following cases, with a request that in similar set of facts in L'Oreal vs. Dushyant Shah 2011 (48) PTC 240 (Del.), the Hon'ble Delhi High Court was pleased to pass decree in favour of the plaintiff against the defendant : i. Midas Hygiene Industries P. Ltd vs. Sudhir Bhatia 2004 (28) PTC 121 (SC)
-held that the law on the subject is well settled. In cases of infringement either of Trade Mark or of Copyright normally an injunction must follow. Mere delay in bringing action is not sufficient to defeat grant of injunction in such cases. The grant of injunction also becomes necessary if it prima facie appears that the adoption of the Mark was itself dishonest". The application for interim injunction was allowed.
ii. American Home Products Corpn. vs. MAC Laboratories Pvt. Ltd. : AIR 1986 SC 137 - held that when a person gets his trade mark registered, he acquires valuable rights by reason of such registration. Registration of his trade mark gives him the exclusive right to the use of the trade mark in connect with the goods in respect of which it is registered and if there is any invasion of this right by any other person using a mark which is the same or deceptively similar to his trade mark, he can protect his trade mark by an action for infringement in which he can obtain injunction, damages or an account of profits made by the other person. 7.2 Further, when there are infringement of registered trademark and passing off, the damages can be awarded to the plaintiff, the plaintiff TM No. 150/2011 Page 9 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 relies upon :
(a) Asian Paints (India) Ltd. vs. Balaji Paints & Chemicals & Ors., 2006 (33) PTC 683 (DEL) - in a suit of passing off and infringement of trademark, held that damages must be awarded against the defendant who chose to remain evasive as it is in larger public purpose to discourage such parties from including in acts of deception and consequently, suit was decreed with damages of Rs. 3 lacs.
(b) ST.IVES Laboratories Inc. vs. Ivees Soape Works & Ors. 2007 (35) PTC 57 (DEL) - similarly, in a suit for infringement of registered trademark "St.Ives", permanent injunction granted in favour of plaintiff with punitive damages of Rs. 1 Lakh.
(c) AdidasSalomon AG & Ors. vs. Jagdish Grover 2005 (30) PTC 308 (Del.) Sections 51 and 55 - it was also suit for infringement of trademark "Adidas", plaintiff has been using the trademark since 1949 but defendant did not defend the suit and was proceeded exparte, the decree of permanent injunction as well as of damages was granted against defendant.
(d) United Biotech (P) Ltd. vs. Schon Pharmaceuticals Ltd. 2010 (42) PTC 103 (DEL) held that law of passing off prevents commercial dishonesty representing one's goods as the goods of somebody else, Courts dealing actions for infringement of Trademark, Copyrights, Patents etc. should not only grant compensatory damages but award punitive damages also with a view to discourage and dishearten law breakers. Damages were granted to the extent of Rs. 2 lac as compensatory damages and further sum of Rs. 2 lac as punitive/exemplary damages.
(e) Pespsico Inc. vs. PSI Ganesh Marketing in CS(OS) No. 157 of 2013 (Date of Decision : 19.05.2014) - The suit is decreed in favour of the plaintiff and TM No. 150/2011 Page 10 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 against the defendants in terms of prayer. Plaintiff was also held entitled to damages to the tune of Rs. 5 lacs.
7.3 During the statement of witness, PW1 was inquired by Court question and Ld. counsel for plaintiff explains in arguments that in terms of paragraphs 29 and 31 of the plaint, the Court at South Delhi has territorial jurisdiction, reliance is placed on L'oreal vs. Dushyant Shah 2011 (48) PTC 240 (Del.) (Date of Decision - 28.09.2011), wherein name of Navbharat Enterprise and of Anand Enterprise was considered as office / business place of plaintiff in Delhi. Therefore, the tax invoice (Mark F/PW1) and tax invoice (Ex. PW1/14) are to be considered for the purposes of jurisdiction to this Court. The plaintiff deserves decree of injunction and of damages. FINDINGS 8.1 The contentions are considered and assessed in the light of material on record, either in the form of pleading or oral testimony of witnesses, coupled with documentary record. The present judgment is in respect of defendant no. 4, although the matter stand compromised between the plaintiff on one side and defendants no. 1, 2 and 5 on the other side. The name of defendant no. 3 was dropped from the array of parties by the TM No. 150/2011 Page 11 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 plaintiff, although after summons in its name visavis appointment of the Local Commissioner to inspect the premises, the Local Commissioner had not inspected the premises of defendant no. 3 on the instructions of plaintiff. Otherwise, all the defendants are of Dehradun, Uttrakhand. 8.2 First of all, the question of jurisdiction is to be considered from the point of section 20 of CPC read with sec. 134 of the Trade Marks Act, 1999. As per plaintiff, paragraph 29 of the plaint, since there are dealers / special agents and C&F Agents of plaintiff in Delhi, the plaintiffs carries on business or work for gain in South Delhi. The plaintiff / PW1 was shown record and inquired during her statement as to how Anand Enterprise is agency of plaintiff, she replied "the bill (Mark F/PW1) does not mention that Anand Enterprise is agency of plaintiff but it could be proved otherwise; the record filed by me today does not contain any document showing that Anand Enterprise is agency of plaintiff". Otherwise Mark F/PW1 are the input tax invoices, when Anand Enterprises sold the goods to Verma Chemist of SN Market, New Delhi, all such invoices are of period 2008, 2009 and 2010, none of the invoices are of the period December 2011 or November 2011, when the suit was filed or there are allegations of cause of action against the defendants. There is no proof of principal and agent between the plaintiff and TM No. 150/2011 Page 12 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 the said Anand Enterprise. It does not prove that Anand Enterprise was special agent of the plaintiff, at the time of filing of the suit, or it was carrying business for plaintiff in Gautam Nagar, Yusuf Sarai, South Delhi. 8.3 Whereas the plaintiff has another submission and plea that there is plaintiff's licensee office at Navbharat Enterprise and the record is Ex. PW1/14. The said record pertains to Kapoor Agency, Janak Puri, New Delhi and the same are of period February 2011. None of the bills are pertaining to the period December / November 2011, when the suit was filed or there are allegations of cause of action against the defendants. 8.4 There is an occasion to go through precedent Dhodha House vs. S.K. Maingi 2006 (9) SCC 41 on the point of jurisdiction in respect of Section 134 of the Trade Marks Act, 1999, wherein it was held that what is the meaning of carries on business or personally work for gain, it was held that the expression 'carries on business' and the expression 'personally works for gain' connotes two different meanings. For the purpose of carrying on business only presence of a man at a place is not necessary. Such business may be carried at a place through an agent or a manag,zer or through a servant. The owner may not even visit that place. The phrase 'carries on TM No. 150/2011 Page 13 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 business' at a certain place would, therefore, mean having an interest in a business at that place, a voice is what is done, a share in the gain or loss and some control thereover. The expression is much wider than what the expression in normal parlance connotes, because of the ambit of a civil action within the meaning of Section 9a of the Code. But it is necessary that the following three conditions should be satisfied, namely : (1)The agent must be special agent who attends exclusively to the business of the principal and carries it on in the name of the principal and not a general agent who does business for anyone that pays him. Thus, a trader in the mufassil who habitually sends grain to Madras for sale by a firm of commission agents who have an independent business of selling goods for others on commission, cannot be said to 'carry on business' in Madras. So a firm in England, carrying on business in the name of A.B&Co., which employs upon the usual terms as Bombay firm carrying on business in the name of C.D&Co., to act as the English firm's commission agents in Bombay, does not 'carry on business' in Bombay so as to render itself liable to be sued in Bombay.
(2)The person acting as agent must be an agent in the strict sense of the term. The manager of a joint Hindu family is not an 'agent' within the meaning of this condition.
(3)To constitute 'carrying on business' at a certain place, the essential part of the business must take place in that place. Therefore, a retail dealer who sells goods in the mufassil cannot be said to 'carry on business' in Bombay merely because he has an agent in Bombay to import and purchase his stock for him. He cannot be said to carry on TM No. 150/2011 Page 14 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 business in Bombay unless his agent made sales there on his behalf. A Calcutta firm that employs an agent at Amritsar who has no power to receive money or to enter into contracts, but only collects orders which are forwarded to and dealt with in Calcutta, cannot be said to do business in Amritsar. But a Bombay firm that has a branch office at Amritsar, where orders are received subject to confirmation by the head office at Bombay, and where money is paid and disbursed, is carrying on business at Amritsar and is liable to be sued at Amritsar. Similarly, a Life Assurance Company which carries on business in Bombay and employs an agent at Madras who acts merely as a Post Office forwarding proposals and sending moneys cannot be said to do business in Madras. Where a contract of insurance was made at place A and the insurance amount was also payable there, a suit filed at place B where the insurance Co. had a branch office was held not maintainable. Where the plaintiff instituted a suit at Kozhikode alleging that its account with the defendant Bank at its Calcutta branch had been wrongly debited and it was claimed that Court had jurisdiction as the defendant had a branch there, it was held that the existence of a branch was not part of the cause of action and that of Kozhikode Court, therefore, had no jurisdiction. But when a company through incorporated outside India gets itself registered in India and does business in a place in India through its agent authorized to accept insurance proposals, and to play claims, and to do other business incidental to the work of agency, the company carries on business at the place of business in India.
8.5 Therefore, while reading the provisions of law on the point of jurisdiction under section 134 of the Trade Marks Act 1999 along with TM No. 150/2011 Page 15 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 pleadings and evidence, particularly the tax invoices (Mark F/PW1 and Ex. PW1/14) also referred in paragraph 8.2 and 8.3, above, it is apparent that on the date of institution of the suit on 16.12.2011, the plaintiff failed to establish that it was actually carrying on business or work for gain within the jurisdiction of South Delhi through special agents or M/s. Anand Enterprise was its agent/special.
It can be explained that the tax invoices (Mark F/PW1), are of the period from 2008 to 2010, showing that Anand Enterprise sold the goods to Verma Chemist but there is no proof of record that Anand Enterprise is special agents of plaintiff visavis the witness PW1 / author of the plaint also replied that there is no record showing that Anand Enterprise is agent of plaintiff. Even as per cause title of the plaint, the address of plaintiff is of Paris, France. Consequently, when the plaintiff is not carrying on business or working for gain nor there is proof that Anand Enterprise is special agent or agent of plaintiff, the failed to establish that it is carrying on business through Anand Enterprise in November 2011/December 2011.
The second limb of argument of plaintiff is that there is plaintiff's licensee's office of Navbharat Enterprises in South Delhi, whereas it is not office but clearing and forwarding agents (C&FA) in the name of Navbharat Enterprises. And whereas as per invoice Ex PW1/14 (of February 2011) TM No. 150/2011 Page 16 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 issued by Navbharat Enterprises L'Oreal India Private Limited, being CPD Division, it had issued invoice to Kapoor Agency of Janak Puri pertaining to the period February 2011. As per license agreement of November 2005 (Mark G/PW1) in favour of L'Oreal India Private Limited, BombayLicensee, the licensee may manufacture or pack or deal with the material as per policy of licensor. The said Navbharat Enterprise, as clearly appearing, is just acting for Clearing or Forwarding the material, there is no proof that C&FA office of plaintiff or it is carrying on business or trade at that place. Thus the features of present case are distinguishable from the facts and circumstances of L'Oreal vs. Dushyant Shah case (Supra).
8.6 Moreover, the plaintiff alleges that the defendant is supplying the goods in South Delhi market, there is no iota of record/evidence to this effect that defendant had supplied goods in South Delhi market. Otherwise, the plaintiff got the local commissioner appointed for area of Dehradun (Uttrakhan) instead of any place in Delhi. The place of business of defendant no. 4 is of Dehradun, alike addresses of other defendants. 8.7 Thus by considering evidence and law, plaintiff failed for prove that the court of South Delhi has territorial jurisdiction either in terms of TM No. 150/2011 Page 17 of 18 M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4 Section 20 of CPC or under section 134 of the Trade Marks Act, 1999.
9. Generally, the court should decides all issues as per Order XIV Rule 2 CPC, subject to exception of SubRule 2 of Rule of Order XIV CPC. Since, on the basis of fact and evidence it is held that this Court lacks jurisdiction, the other aspect should not be decided, otherwise it would amount to assumption of jurisdiction. Simultaneously, there was compromise amongst the plaintiff and other three defendants.
Therefore, plaint qua defendant no. 4 is to be returned to the plaintiff to present it before competent Court of law. As there is settlement with other three, let certified copy of plaint be placed on record, the original will be returned forthwith on furnishing the certified record. Steps be taken in time. In case certified copy is not filed within two months from today, then file will be consigned to record.
Announced in the open Court today (Inder Jeet Singh)
th
Monday on 20 Asvina, Saka 1937 Additional District Judge02 (South),
Saket, New Delhi / 12.10.2015
TM No. 150/2011 Page 18 of 18
M/s. L'Oreal vs. Heena Kangan Store / Defendant No. 4
TM No. 150/2011
12.10.2015
Present : Proxy counsel for petitioner.
Defendant no. 4 is exparte.
Suit has been decreed against the defendants no. 1, 2 and 5 (as per decree dated 02.03.2012) and name of defendant no. 3 was dropped from the array of defendants on 02.03.2012.
Vide separate judgment announced today, the plaintiff failed for prove that the Court of South Delhi has territorial jurisdiction either in terms of Section 20 of CPC or under section 134 of the Trade Marks Act, 1999.
Generally, the Court should decides all issues as per Order XIV Rule 2 CPC, subject to exception of SubRule 2 of Rule of Order XIV CPC. Since, on the basis of fact and evidence it is held that this Court lacks jurisdiction, the other aspect should not be decided, otherwise it would amount to assumption of jurisdiction. Simultaneously, there was compromise amongst the plaintiff and other three defendants.
Therefore, plaint qua defendant no. 4 is to be returned to the plaintiff to present it before competent Court of law. As there is settlement with other three, let certified copy of plaint be placed on record, the original will be returned forthwith on furnishing the certified record. Steps be taken in time. In case certified copy is not filed within two months from today, then file will be consigned to record.
(Inder Jeet Singh)
ADJ02 (South), Saket
N New Delhi / 12.10.2015
TM No. 150/2011 Page 19 of 18