Delhi District Court
M/S Cipla Limited vs M/S.Sun Pharmaceutical Industries Ltd on 6 July, 2007
1
IN THE COURT OF DR.SUDHIR KUMAR JAIN, ADDITIONAL DISTRICT JUDGE, DELHI
Suit No : 113/06
M/s Cipla Limited,
Mumbai Central,
Mumbai-400 008 ... Plaintiff
Versus
M/s.Sun Pharmaceutical Industries Ltd.,
Acme Plaza, Andheri Kurla Road,
Andheri (East),
Mumbai - 400059 ... Defendant
Appearances:
For the Plaintiff : Sh.Ajay Sahni, Advocate
For the defendant : Sh.Sanjay Dua, Advocate
ORDER
This order shall dispose of an application filed on 30.08.2006 u/O VII Rule 11 CPC by defendant for rejection of the plaint.
2. Briefly stated the relevant facts as pleaded by the plaintiff are that the plaintiff is one of the leading manufacturers of medicinal and pharmaceutical preparations and having its registered office at Mumbai Central, Mumbai-400008; plaintiff on 03.08.1967 has adopted a trade mark FLEXINOL in respect of one of its pharmaceutical preparations and has made all efforts to ascertain that no other competitor was having a mark 2 which was identical and/or deceptively similar to FLEXINOL of the plaintiff; the plaintiff commercially launched its pharmaceutical product under the trade mark FLEXINOL in the month of April, 1987; the said trade mark was got registered under the provisions of the Trade Mark Act on 03.08.1967; the plaintiff for the last more than 19 years has been using the trade mark FLEXINOL continuously, extensively and exclusively throughout India on a very large scale and as such acquired a reputation of being extremely safe drug by virtue of quality standards maintained by the plaintiff; the plaintiff in the last week of May, 2006 came to know that the defendant is using the mark FLEXITAL throughout the country and has applied for registration of said trade mark FLEXITAL. The plaintiff being aggrieved filed the suit for permanent injunction, rendition of account etc.
3. The plaintiff in para 22 of the plaint stated that this court has jurisdiction to entertain and try the suit as the defendant is selling, advertising, offering for sale and carrying on its business of marketing pharmaceutical preparations bearing the impugned trade mark FLEXITAL through its distributor within the jurisdiction of the Hon'ble Court as such part of cause of action has arisen within the jurisdiction of the court.
4. The defendant filed the written statement. The defendant has pleaded that the plaintiff has not disclosed the true facts before this court as the defendant has been using the trade mark FLEXITAL in respect of its 3 goods since the year 1988 continuously, extensively and regularly and defendant's application for registration of trade mark FLEXITAL in respect of its goods claiming user since 1988 is pending; this court has no territorial jurisdiction to entertain and try the suit as both the parties are stationed at Mumbai. The defendant has also controverted other allegations of the plaintiff.
5. The defendant in para 22 of the reply on merits stated this court has no territorial jurisdiction to entertain and try the suit.
6. The plaintiff has filed replication wherein reasserted and reaffirmed the previous stand.
7. The defendant in the application under disposal filed u/O VII Rule 11 CPC stated that both the parties, plaintiff and the defendant are carrying on their business in Mumbai and this court lacks the territorial jurisdiction to entertain and try the suit. The defendant as such prayed that the plaint be rejected or returned for want of the territorial jurisdiction.
8. The application is contested by the plaintiff by filing the reply. The plaintiff stated that the plaintiff is carrying on its business through its branch office at A-37, Connaught Place, New Delhi-1100001 and the goods of the defendant bearing the impugned trade mark FLEXITAL are openly available for sale within jurisdiction of this court. The plaintiff has also placed on record the original cash memo bearing no.562 dated 14.07.2006 issued by one 4 M/s.Prakash Medicos for the sale of the medicine under the trade mark FLEXITAL. The plaintiff has prayed for dismissal of the application.
9. Sh.Ajay Sahni, Advocate for the plaintiff and Sh.Sanjay Dua, Advocate for the defendant heard. Record perused.
10. In the present case, the plaintiff stated that the plaintiff is having its branch office at New Delhi. The plaintiff has also mentioned in para 22 of the plaint that the defendant is selling, advertising and offering for sale and carrying on business of marketing pharmaceutical preparations bearing the impugned trade mark FLEXITAL through its distributor within the jurisdiction of this court. The plaintiff has also placed on record one original cash memo bearing no. 562 dated 14.07.2006 to establish prima facie that the medicines under the trade mark FLEXITAL are being sold within the local limits of this court. It was observed in the case of LG Corporation & Anr. V Intermarket Electroplasters ( P ) Ltd.and Anr., 2006( 32) PTC 429(Del.) that the question as to whether the court has territorial jurisdiction to entertain a suit or not has to be arrived at on the basis of averments made in the plaint, that truth or otherwise thereof being immaterial as it cannot be gone into at this stage. It was further observed that the sale of goods by defendant no.1 in Delhi, which, according to the plaintiff, are the infringing goods and violate the trade mark of the plaintiff will give rise to the cause of action as such the courts at Delhi will have the jurisdiction. In the present case, the plaintiff has 5 made specific averment that the defendant is selling pharmaceutical goods under the infringed trade mark FLEXITAL within the jurisdiction of the court. The plaintiff has also placed on record the cash memo to show sales of pharmaceutical products under the infringed trade mark. It was also held in the case of Lalli Enterprises V Dharam Chand & Sons, 2003(26) PTC 239 (DB) that the aspect of territorial jurisdiction can be if at all considered at a later stage it may require evidence to be led to determine territorial jurisdiction.
It was also held in the case of Aviat Chemicals Pvt.Ltd.& Anr.V Magna Laboratories (Gujarat) P.Ltd.and Anr., 2002 (24) PTC 231 (Del) that if the sales are taking place in Delhi then the civil court at Delhi for purposes of the suit will have jurisdiction to entertain the suit.
11. In the present case, the plaintiff has averred that the sales of pharmaceutical product under the impugned trade mark have taken place within the territorial jurisdiction of Delhi. The documents are placed on record. The plaintiff is having the branch office at Delhi. It cannot be said at this stage that this court has no territorial jurisdiction to entertain and try the suit. The application under disposal is devoid of any merit. Hence, dismissed.
Announced in the open court (Dr.Sudhir Kumar Jain) Dated: 06.07.2007 Additional District Judge, Delhi 6 7 S.113/06 06.07.2007.
Present : Sh.Amit Sindhwani, Advocate for the plaintiff.
None for the defendant.
Vide my separate order, the application u/O VII Rule 11 CPC is dismissed.
Put up on 07.09.2007 for arguments on stay
application.
(Dr.Sudhir Kumar Jain)
Additional District Judge, Delhi
06.07.2007.