Delhi High Court - Orders
Impresario Entertainment And ... vs M/S. Orangebelly Food And Beverages ... on 22 February, 2023
Author: C. Hari Shankar
Bench: C. Hari Shankar
$~19(Original)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 119/2022 & I.A. 2861/2022, I.A. 3348/2022, I.A.
10684/2022
IMPRESARIO ENTERTAINMENT AND HOSPITALITY
PVT. LTD. ..... Plaintiff
Through: Mr. Chander M. Lall, Sr. Adv.
versus
M/S. ORANGEBELLY FOOD AND BEVERAGES PVT.
LTD. & ANR. ..... Defendants
Through: Ms. Khyati Dhupar and Mr.
Govind K. Chaturvedi, Advs.
CORAM:
HON'BLE MR. JUSTICE C. HARI SHANKAR
ORDER
% 22.02.2023 I.A. 3348/2022 (under Order VII Rules 10 and 11 of CPC, filed by defendants)
1. Though this application has been preferred by the defendants, under Rules 10 and 11 of Order VII of the CPC, Ms. Khyati Dhupar, learned counsel appearing for defendants, presses the application only under Order VII Rule 10. According to Ms. Khyati Dhupar, this suit is bad for want of territorial jurisdiction and has, therefore, to be returned to be presented before the appropriate forum.
2. The plaintiff, in the suit, alleges infringement, by the Defendant 1, of the registered "SOCIAL" mark of the plaintiff, by running a restaurant under the name. "SOCIAL KULTURE". The restaurant is admittedly located at Patna and has no branch or other outlets.
Signature Not Verified3. In the memo of parties accompanying the plaint, Defendants 1 Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 119/2022 Page 1 of 8 Signing Date:23.02.2023 15:25:55 and 2 are both shown to be at Patna. The address of the plaintiff is, on the other hand, provided as under:
"Impresario Entertainment & Hospitality Pvt. Ltd R-1, Upper Ground Floor, Epicuria Food Mall, Nehru Place Metro Station, New Delhi -110019 Also at:
American Express Bakery House 1st Floor, Clare Road Byculla(West) Mumbai-400008"
4. The defendants have moved the present application, contesting the territorial jurisdiction of this Court to entertain the present suit.
5. I have heard Mr. Chander M Lall, learned Senior counsel for the plaintiff and Ms. Khyati Dhupar, learned Counsel for the defendants on this application.
6. Ms. Khyati Dhupar submits that no part of the cause of action in the present case has arisen within the confines of the territorial jurisdiction of this Court, as the restaurant run by her client is located in Patna with no outlet outside Patna. The mere fact that her client may be having an interactive website, she submits, is insufficient to clothe this court with the jurisdiction in this matter.
7. Mr. Chander M. Lall submits that, without going into the question of whether the jurisdiction of this Court could be invoked on the ground of the website hosted by the defendant, Section 134(1) and (2)1 of the Trade Marks Act would, in any case, confer jurisdiction on 1
134. Suit for infringement, etc. to be instituted before District Court.--(1) No suit--
(a) for the infringement of a registered trade mark; or
(b) relating to any right in a registered trade mark; or Signature Not Verified
(c) for passing off arising out of the use by the defendant of any trade mark which is identical with Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 119/2022 Page 2 of 8 Signing Date:23.02.2023 15:25:55 this Court in the present case.
8. Section 134(2) confers jurisdiction on the court "within local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain".
9. These expressions were examined in detail by a Division Bench of this Court in Ultra Home Construction Pvt. Ltd. v. Purushottam Kumar Chaubey 2, which took into account earlier precedents of the Supreme Court on the point and, finally, held thus, in para 14 of the report:
"14. It is evident from the above observations that the interpretation given to the expression "carries on business" in the context of a defendant under section 20 of the Code has also been employed in the context of a plaintiff under the said sections 134(2) and 62(2). Thus, in addition to the places where suits could be filed under section 20 of the Code, the plaintiff can also institute a suit under the Trade Marks Act, 1999 and the Copyright Act, 1957, as the case may be, by taking advantage of the provisions of section 134(2) or section 62(2), respectively. Both the latter provisions are in pari materia. Under these provisions four situations can be contemplated in the context of the plaintiff being a corporation (which includes a company). First of all, is the case where the plaintiff has a sole office. In such a case, even if the cause of action has arisen at a different place, the plaintiff can institute a suit at the place of the sole office. Next is the case where the plaintiff has a principal office at one place and a subordinate or branch office at another place and the cause of action has arisen at the place of the principal office. In such a case, the plaintiff may or deceptively similar to the plaintiff's trade mark, whether registered or unregistered, shall be instituted in any court inferior to a District Court having jurisdiction to try the suit. (2) For the purpose of clauses (a) and (b) of sub-section (1), a "District Court having jurisdiction" shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law for the time being in force, include a District Court within the local limits of whose jurisdiction, at the time of the institution of the suit or other proceeding, the person instituting the suit or proceeding, or, where there are more than one such persons any of them, actually and voluntarily resides or carries on business or personally works for gain.
Explanation.--For the purposes of sub-section (2), "person" includes the registered proprietor and the registered user.
Signature Not Verified 22016 SCC OnLine Del 376 Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 119/2022 Page 3 of 8 Signing Date:23.02.2023 15:25:55 sue at the place of the principal office but cannot sue at the place of the subordinate office. The third case is where the plaintiff has a principal office at one place and the cause of action has arisen at the place where its subordinate office is located. In this eventuality, the plaintiff would be deemed to carry on business at the place of his subordinate office and not at the place of the principal office. Thus, the plaintiff could sue at the place of the subordinate office and cannot sue (under the scheme of the provisions of section 134(2) and 62(2)) at the place of the principal office. The fourth case is where the cause of action neither arises at the place of the principal office nor at the place of the subordinate office but at some other place. In this case, the plaintiff would be deemed to carry on business at the place of its principal office and not at the place of the subordinate office. And, consequently, it could institute a suit at the place of its principal office but not at the place of its subordinate office."
10. Mr. Lall's contention is that the present case would fall within the fourth exigency envisaged in the afore-extracted paragraph from Ultra Home Construction2, as the principal office of the plaintiff is in Delhi and the place where the cause of action has arisen is Patna where the plaintiff has no office.
11. In such cases, the plaintiff is entitled to institute the suit at Delhi.
12. Ms. Dhupar, learned Counsel for the defendants, has contested the correctness of Mr. Lall's submission that the principal office of the plaintiff is at Delhi. Apropos this submission, the defendants have, in their written statement, merely contended that the registered office of the plaintiff, as per the records of the plaintiff on the website of the Ministry of Corporate Affairs, is "American Express Bakery House, 1st Floor, Clare Road Byculla (West), Mumbai-400008". She submits that the aforesaid Mumbai address has to be regarded as the principal office of the plaintiff.
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 119/2022 Page 4 of 8 Signing Date:23.02.2023 15:25:5513. Mr. Lall does not agree.
14. He has drawn my attention to para 53 of the plaint, in which it is asserted thus:
"53. This Hon'ble Court has the territorial jurisdiction to try and entertain the present proceedings by virtue of the fact that the Plaintiff carries on business in Delhi inter alia through its office at the address R-1, Upper Ground Floor, Epicuria Food Mall, Nehru Place Metro Station, New Delhi - 110019 where the Plaintiff has a SOCIAL restaurant/bar and an office housing about two hundred and fifty personnel. The Plaintiff's principal place of business is Delhi. The Plaintiff's Delhi office is the principal office through which the entire pan India franchise and licensing business and the nonfood supply chain management of the Plaintiff for all its restaurants/bars is carried out. The principal officer of the Plaintiff who conducts the negotiations with respect to the franchise business and negotiates the licensing terms also resides in Delhi and works out of the above office."
15. The afore-extracted assertions in para 53 of the plaint, submits Mr. Lall, is suffice to treat the Delhi office of the plaintiff as its principal office. In any event, he submits that this issue would be a matter of trial. He relies, for this purpose, on paras 31 and 32 of the report in Mayer (HK) Ltd. v. Owners & Parties, Vessel M.V. Fortune Express3, which read thus:
"31. From the aforesaid, it is apparent that the Court has found that the Calcutta Court has jurisdiction to try the proceedings except when the forum selection clause excludes the jurisdiction of the Court. The Court has also found that the law of Singapore is not known. The case of the defendant carrier/owner of the ship, of exclusion of the Calcutta Court, is solely based on the exclusion clause which conferred jurisdiction on the Court where the defendant has the principal place of business, which according to us has to be determined only after sufficient material is placed before the Court. In Advanced Law Lexicon, 3rd Edition 2005, by P.Ramanatha Aiyar, at page 3717, `principal place of business' is defined as under:
"where the governing power of the corporation is exercised, where those meet in council who have a right to control its affairs and prescribe what policy of the corporation shall be pursued, and not where the labour is performed in Signature Not Verified 3 (2006) 3 SCC 100 Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 119/2022 Page 5 of 8 Signing Date:23.02.2023 15:25:55 executing the requirements of the corporation in transacting its business The place of a corporation's chief executive offices, which is typically viewed as the "nerve center"
... the place designated as the principal place of business of the corporation in its certificate of incorporation."
32. From this, it appears that the principal place of business would be where the governing power of the corporation is exercised or the place of a corporation's Chief Executive Offices, which is typically viewed as the nerve center or the place designated as the principal place of business of the corporation in its incorporation under the various statutes. Therefore, to arrive at a finding as to which is the principal place of business, the parties would be required to place the relevant material before the Court. The Court cannot arrive at a finding of a particular place being the principal place of business at the preliminary stage of the hearing of the suit. The defendants have not placed any material before the Court that the Singapore Court is another available forum which is clearly or distinctly more appropriate than the Indian Courts. The Court has not taken into consideration that the action commenced by the plaintiff-appellants in Calcutta Court founded on the facts which are most real and substantially connected in terms of convenience or expense, availability of the witnesses and the law governing the relevant transaction in the Indian Court. There is no averment in the application filed by the defendants that continuance of the action in Calcutta High Court would work injustice to them because it is oppressive or vexatious to them or would be an abuse of the process of the Court. There was no material before the Court how the trial at Singapore would be more convenient to the parties vis-`-vis the trial of the suit at Calcutta and that justice could be done between the parties at substantially less inconvenience and expense. Nor it has been shown that stay would not deprive the plaintiffs of legitimate personal or juridical advantage available to them. In the facts of the case, we are not satisfied that there is other forum having jurisdiction, in which the case may be tried more suitably for the interest of all the parties and for ends of justice."
16. While deciding an application under Order VII Rule 10 or Order VII Rule 11 of the CPC, it is trite that the averments in the application are required to be taken into account. The plaint specifically avers that the main activities including the pan-India franchise and licensing business and non-food supply chain management of the plaintiff for all its restaurants and bars was Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 119/2022 Page 6 of 8 Signing Date:23.02.2023 15:25:55 managed from Delhi. It is further averred that the principal office of the plaintiff who conducts negotiations in these respects is also at Delhi and works out of its Delhi office.
17. At a prima facie stage, these assertions would, in view of Section 134(2) of the Trade Marks Act read with the decision of the Division Bench of this Court in Ultra Home Construction2 and the judgment of the Supreme Court in Mayer3, suffice to clothe this court with jurisdiction in this matter.
18. Needless to say, these views are expressed only with respect to the present application under Order VII Rule 10 of the CPC. They shall not operate as a final decision on the aspect of territorial jurisdiction on which the defendants would be at liberty to advance further submissions during or after trial.
19. At this stage, therefore, I am convinced that the present case cannot be returned on the ground of want of territorial jurisdiction.
20. Accordingly, the application is dismissed.
I.A. 10684/2022 (under Order VI Rule 17 of the CPC)
21. This application seeks amendment of the plaint.
22. Ms. Khyati Dhupar does not oppose the application.
23. Accordingly, the application is allowed.
24. The amended plaint filed along with the application is taken on Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 119/2022 Page 7 of 8 Signing Date:23.02.2023 15:25:55 record.
25. Amended written statement, if any, may be filed within four weeks.
I.A. 2861/2022 (under Order XXXIX Rules 1 and 2 of CPC)
26. Re-notify on 14th March 2023 for hearing.
CS(COMM) 119/2022
27. List before the learned Joint Registrar (Judicial) for completion of the pleadings, admission and denial of documents and marking of exhibits on 23rd March 2023, whereafter the matter would be placed before the Court for case management hearing and further proceedings.
28. Let the copy of this order be uploaded on the website of this Court within 24 hours.
C. HARI SHANKAR, J.
FEBRUARY 22, 2023 dsn Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 119/2022 Page 8 of 8 Signing Date:23.02.2023 15:25:55