Delhi District Court
Shri Naseer Ahmed vs Liberty Footwear Co on 3 October, 2011
IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL)12
TIS HAZARI COURTS, DELHI.
T.M No. 97/2011
Shri Naseer Ahmed
...Plaintiff
Versus
Liberty Footwear Co.
...Defendant
Order Under Order 7 Rule 10 & 11 CPC
1.An application under Order 7 Rule 11 Code of Civil Procedure has been filed by the defendant seeking rejection of plaint.
2. During the course of arguments ld. counsel for the defendant has extended the scope of application by propounding a challenge to the territorial jurisdiction of the court to adjudicate upon the present lis and it has been submitted that the application be also considered under Order 7 Rule 10 CPC for return of plaint for want of jurisdic tion.
3. This was objected to by the ld. counsel for the plaintiff stating that issues have already been framed on 09.01.2009, evidence has commenced and that the Hon'ble High Court of Delhi has directed ex peditious disposal of the case preferably within one year. It is submit Naseer Ahmed Vs. Liberty footwear Company Page 1 of 13 ted that such submissions of defendant has been pressed into service with the sole motive to delay the case.
4. The submission of ld. counsel for the plaintiff has been refuted by the defendant by stating that it is the settled law that objection to jurisdiction can be taken at any stage.
5. In view of the rival submissions arguments have been addressed on these aspects by the parties at length over a number of hearings.
6. In its application the defendant has questioned the plaintiff's ownership of trade mark by virtue of assignment of the trade mark No.214282B in class 25. The assignment deed has not been allowed by the registrar of Trademarks Delhi till today.
7. The second limb of argument of defendant is that the plaintiff has not placed on record any document to prove that he is using the trade mark 'FORCE' and as such no cause of action has arisen against the defendant. The defendant is the registered proprietor of trade mark 'FORCE 10' under registration no. 553998 and has been openly using the same since 1990. The plaintiff is using the mark only on sport shoes whereas the defendant has not been manufacturing or selling sport shoes.
Naseer Ahmed Vs. Liberty footwear Company Page 2 of 13
8. The third limb of defendant's argument is that the suit has been filed under the Trade & Merchandise Marks Act, 1958. Thus it has ei ther to be filed having recourse section 105 of the Trade & Merchan dise Marks Act, 1958 or within the meaning of section 20 of the Code of Civil Procedure. The plaint does not disclose any of the causes for which jurisdiction to institute the suit in Delhi is made out. In the plaint the particulars of defendant have been mentioned as Liberty Footwear Co. Railway Road, Karnal, Haryana. The address of plaintiff is Sh. Naseer Ahmad, Sole Proprietor M/s Force Footwear Co. Shoe Market, Agra282003. As the suit was filed when the Trade Marks Act, 1999 was not in force, the plaintiff cannot have recourse to sec tion 134 of the Act, which gives an additional forum, albeit the same is not attracted in the facts and circumstances of the case.
9. Defendant has relied upon Dhodha House, M/s. v. S. K. Main gi AIR 2006 SUPREME COURT 730 to argue that 'the Parliament while enacting the Trade and Merchandise Marks Act in the year 1958 was aware of the provisions of the 1957 Act. It still did not choose to make a similar provision therein. Such an omission may be held to be a conscious action on the part of the Parliament. The inten Naseer Ahmed Vs. Liberty footwear Company Page 3 of 13 tion of the Parliament in not providing for an additional forum in re lation to the violation of the 1958 Act is, therefore, clear and explicit.'
10. Reliance has been placed by defendant on the case of Dhodha House, M/s. v. S. K. Maingi AIR 2006 SUPREME COURT 730 to bring home the argument that 'advertisement appearing in Trade marks journal or newspapers by itself would not confer any jurisdic tion on Court, if it otherwise did not have any'.
11. Defendant has also relied upon the case of Vshnu Horticultur al Pvt. Ltd. vs. Shampiyan Viniyard Ltd. MANU/MH/1235/2009 on the point that 'it is mandatory on the part of the court to return the plaint for being presented to the proper court when it comes to con clusion, at any stage of the suit, that it has no jurisdiction, over the subject matter of the suit.'
12. To further support its arguments defendant has also placed re liance upon the case of Lok Nath Prasad Gupta vs. Bijay Kumar Gupta 1995 AD (DELHI) 830 and it has been relied upon on the point that 'a bald assertion, as has been made in para 13 of the plaint referred to hereinabove without giving further facts or particulars is not enough to confer this Court with a territorial jurisdiction over the Naseer Ahmed Vs. Liberty footwear Company Page 4 of 13 suit. The plaintiff does not allege having any shop, branch or office of his own in Delhi. The plaint also does not allege any instance of the defendant having soled the infringing goods in Delhi or having any office, branch or shop of his own in Delhi.'
13. It has been argued by the plaintiff that the defendant has not se riously disputed the jurisdiction of this Court in its written statement and the plea of want of jurisdiction has been taken for the first time by way of demurrer. Issues have already been framed on 19.01.2009 and there is no issue as regards the lack of jurisdiction. No application has been filed to frame an issue on this aspect. Now the trial is on and the plaintiff's witness are under examination. When an objection to juris diction is taken by way of demurrer the averments of the plaint are to be taken in a holistic manner i.e. they have to be taken as true. More so the defendant is deemed to have admitted the jurisdiction of the Court by specifically not denying the same in its written statement.
14. Ld. Counsel for the plaintiff has placed reliance on Exphar SA v. Eupharma Laboratories Ltd. AIR 2004 SUPREME COURT 1682 that 'Besides when an objection to jurisdiction is raised by way of demurrer and not at the trial, the objection must proceed on the ba Naseer Ahmed Vs. Liberty footwear Company Page 5 of 13 sis that the facts as pleaded by the initiator of the impugned proceed ings are true. The submission in order to succeed must show that granted those facts the Court does not have jurisdiction as a matter of law. In rejecting a plaint on the ground of jurisdiction, the Division Bench should have taken the allegations contained in the plaint to be correct...'
15. On this aspect another judgment relied upon by the plaintiff is Shree Rajmoti Industries vs. Rajmoti Oil Mills Pvt. Ltd. 2005 (30) PTC 38 (Del) in which the case of Exphar SA v. Eupharma Labo ratories Ltd.(supra) has been cited and relied upon.
16. Ld. Counsel for the plaintiff has further relied upon the case law Pfizer Enterprises Sarl versus S. Cipla Ltd. FAO (OS) 356/2008 decided on 24.10.2008 by the Hon'ble High Court of Delhi wherein it has been held that 'if the defendant fails to effectively respond to the pleadings in the plaint and instead sets out extraneous reasons why the Court does not possess jurisdiction, the nontraversed pleadings will be deemed to be correct'
17. Vide the minutes of proceedings dated 19.01.2009 the following issues were framed: Naseer Ahmed Vs. Liberty footwear Company Page 6 of 13
1.Whether the defendant is guilty of infringing the registered trade marks of plaintiff under number 214282B in relation to footwears in class 25? If so, its effect? OPP
2.Whether the defendant is guilty of passing off the goods of plain tiff by manufacturing the goods under the trademark FORCE 10? If so,it s effect? OPP
3.If issue no. 1 or issue no. 2 or both of them is/are proved in affir mative, whether the plaintiff is entitled to a decree for delivery up as prayed in prayer clause iii of the plaint? OPP
4.Whether the plaintiff is entitled to a decree of rendition of ac counts as prayed for in prayer clause iv of the plaint? OPP
5.Relief.
18. Let me examine the rival pleadings visàvis the reference to the facts of jurisdiction.
19. In para 8 of the plaint the plaintiff has averred that '...the de fendant is marketing foot wears under the Trademarks FORCE 10 in relation to foot wears. The defendant is marketing foot wears under the Trademarks FORCE 10 in Delhi and other parts of the country in a clandestine and surreptitious manner i.e. without issuance of any in Naseer Ahmed Vs. Liberty footwear Company Page 7 of 13 voices against sale. The plaintiff and defendant operate in the same line of business and in the same areas and market in Delhi and other parts of the country....'. In the corresponding para of the written state ment (para 10 on page 8) the defendant has generally denied the aver ments but has omitted to deny the averment regarding sale in Delhi and other parts of the country. It has stated that 'It is vehemently de nied that the defendant is selling the goods under the FORCE 10 in a clandestine manner or without issuance of any invoices against sale.' In the entire para under reply the defendant has played truant to an swer to the plaintiff's averment regarding sale by defendant in Delhi or use of trademark FORCE 10 in Delhi or other parts of the country. Thus the nondenial is deemed to be an admission on the part of the defendant.
20. In para 9 of the plaint it is averred that the had defendant filed a rectification petition in Delhi High Court being C.O. no. 10/98 against the mark no.214282B of plaintiff which is still pending. How ever it is the settled law that pending of such proceedings do not con fer any jurisdiction.
21. Para 12 of the plaint read as: Naseer Ahmed Vs. Liberty footwear Company Page 8 of 13 'That the defendant works for gain in Delhi. The said acts of infringement and passing off are also being carried out in Delhi. Thus, the Hon'ble court has jurisdiction to entertain and adjudicate the present suit.'
22. Corresponding para of the written statement (Para 12 on page
10) reads as: 'The contents of para 12 of the plaint are wrong and denied. The defendants are having their place of business at Karnal, Haryana and as such this Hon'ble Court has no jurisdiction to try the present suit.'
23. Defendant has not specifically denied that it does not work for gain in Delhi. The defendant has made only a statement that it is hav ing its place of business at Karnal. The nontraversed pleadings are deemed admissions.
24. The case of Lok Nath Prasad Gupta vs. Bijay Kumar Gupta 1995 AD (DELHI) 830 has been strongly relied upon by the defen dant stating that the plaintiff has made vague averments about juris diction. Reading this case together with Pfizer Enterprises Sarl ver sus S. Cipla Ltd. FAO (OS) 356/2008 decided on 24.10.2008 by the Hon'ble High Court of Delhi clearly shows that the lacuna in the Naseer Ahmed Vs. Liberty footwear Company Page 9 of 13 plaint has been filled up by the defendant by tacit and deemed admis sion visàvis the factum of jurisdiction.
25. The pleadings are supposed to contain only the facts and not the evidence by which they are to be proved. It is also the settled position of law that if the question of territorial jurisdiction is found to be a mixed question of law and facts, the rival facts pressed into service by the parties require test through trial and under such situation the plaint cannot be rejected. The case is at the stage of trial and the plaintiff evi dence has already begun.
26. The written statement has been drafted with considerable inge nuity. If the same is read in isolation, it gives an impression of lack of territorial jurisdiction. But when the same is read visàvis the plaint the omission to deny material facts regarding the jurisdiction become manifest and crystallized thus giving rise to the presumption that non traversed pleadings are correct. The reading the written statement in entirety and in a meaningful manner as above leads to irresistible con clusion that there is tacit or deemed admission of facts that plaintiff works for gain in Delhi and having sale in Delhi in respect of the Naseer Ahmed Vs. Liberty footwear Company Page 10 of 13 goods bearing a particular trademark which is subject matter of in the present lis.
27. The other set of objections is visàvis the provisions under Or der 7 Rule 11 Code of Civil Procedure.
28. In its application the defendant has questioned the plaintiff's ownership of trade mark by virtue of assignment of the trade mark No.214282B in class 25 stating that the assignment deed has not been allowed by the registrar of Trademarks Delhi till today. It is also pro pounded that t the plaintiff has not placed on record any document to prove that he is using the trade mark 'FORCE' and as such no cause of action has arisen against the defendant. The defendant is the regis tered proprietor of trade mark 'FORCE 10' under registration no. 553998 and has been openly using the same since 1990. The plaintiff is using the mark only on sport shoes whereas the defendant has not been manufacturing or selling sport shoes. Arguments have been made regarding the authenticity of the plaintiff's documents/evidence etc.
29. The plaintiff has vehemently opposed the application stating that the application not maintainable within the purview of Order 7 Rule 11 of the Code of Civil Procedure. The expression 'cause of ac Naseer Ahmed Vs. Liberty footwear Company Page 11 of 13 tion' has a dual meaning. One meaning is relevant to the jurisdiction of the court (covered by Order 7 Rule 10 CPC) and the other to the ba sis of claim (covered by Order 7 Rule 11 CPC).
30. The scope of Order 7 Rule 11 CPC on the basis of plaint not disclosing a cause of action is well defined in a catena of case law and has become axiomatic.
31. There is a marked difference between the plaintiff not having a cause of action and the plaint not disclosing a cause of action. The for mer aspect can be established by evidence whereas the latter can be gauged by a bare reading of the plaint.
32. It is settled law that for this purpose the plaint and only the plaint has to be read. The averments made in the plaint are are to be taken as true and at the face value for this purpose. The defences set up in the written statement are not to be seen. The plaint has to be read as a whole and in a meaningful manner.
33. I have considered the rival submissions. The averments as made in the application under Order 7 Rule 11 Code of Civil Procedure are in the nature of defences of opposition. The plaintiff has not been Naseer Ahmed Vs. Liberty footwear Company Page 12 of 13 demonstrate that bare perusal of the pliant does not disclose a cause of action, taking the facts at par value.
34. A plain and simple reading of plaint discloses a cause of action. Whether the plaintiff would be able to establish his case in evidence or whether the defendant would be able to establish his defence can only be seen after the case is put to trial. The proceedings of the case can not be shortcircuited at this stage.
35. Rejection of plaint and dismissal of suit operate into different spheres and there is a fine dividing line between the two.
36. In view of above discussion the defendant has failed to make out any case for rejection of plaint.
37. Resultantly, the oral objections of defendant for return of plaint for want of jurisdiction and application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of plaint are dismissed. Announced in the Open Court today on 03.10.2011 (Man Mohan Sharma) ADJ 12(Central), Delhi Naseer Ahmed Vs. Liberty footwear Company Page 13 of 13