Supreme Court - Daily Orders
Hemant Kataria vs D.P Abhushan Ltd on 27 March, 2025
Author: Prashant Kumar Mishra
Bench: Prashant Kumar Mishra
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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) NO.59 OF 2025
HEMANT KATARIA & ORS. PETITIONER(S)
P1 : DPK JEWELLERS
P2 : D.P.GOLD
P3 : DP KATARIA PRIVATE LTD.
VERSUS
D.P ABHUSHAN LTD RESPONDENT(S)
O R D E R
Heard learned counsel for the parties.
2. The Petitioners have filed this Transfer Petition seeking transfer of Civil Suit bearing No. CS(COMM)/886/2024, titled “D.P.Abhushan Ltd. Vs. Hemant Kataria & Ors.” pending before the learned District Judge, (Commercial Court), Room No.1, New Delhi District, Patiala House Courts, New Delhi, Delhi to the learned District Judge, (Commercial Court), Ratlam(Madhaya Pradesh).
3. The matter relates to a commercial dispute regarding Trade Mark between the parties, who are also cousin brothers.
4. The respondent filed the case before the Commercial Court at Patiala House Courts, New Delhi and prompting the petitioner to move this Court seeking a transfer to Ratlam, Madhya Pradesh.
5. Learned counsel for the petitioners submits that both the parties/firms are situated in Ratlam having their business outlet and there is no office or permanent establishment of both the parties at Delhi. It was submitted that even the basis of the dispute is the newspaper advertisement published at Ratlam. Signature Not Verified Digitally signed by VARSHA MENDIRATTA Date: 2025.04.01
6. 11:12:17 IST Reason: Learned counsel for the petitioners further submitted that the respondent has taken the plea that, due to such advertisement which was also available on the Website/E-edition of the concerned newspaper, his clients in Delhi have been affected and 2 this gave him a cause of action to file the suit in Delhi. It was further pointed out that the transactions, on the basis of which the jurisdiction at Delhi is sought to be justified, are some invoices which the respondent has issued to their clients, which also indicate that sales were made from Indore Office of the respondent to entities, which were outside Ratlam/Indore, including Delhi. However, it was submitted that on the back of the receipt it was clearly stipulated that any dispute arising out of the transaction would give cause of action for litigation only at Ratlam. He summed up his argument by submitting that all the elders of the common family reside at Ratlam, even for the purposes of conciliation, Ratlam is best suited.
7. Per contra, learned counsel for the respondent submitted that it being the dominus litis, can choose the place to institute the suit when multiple jurisdictions are available and on this ground, the suit ought not to be transferred. It was submitted that Section 134(2) of the Trade Marks Act, 1999 and Section 62(2) of the Copy Right Act,1957 clearly give jurisdiction to the Court at Delhi to adjudicate the matter. It was further submitted that inconvenience cannot be a ground as both the parties are into business and sufficiently solvent. Moreover, it was submitted that there is no Court of competent jurisdiction functioning at Ratlam, where the matter can be adjudicated.
8. Learned counsel for the respondent further relied upon the order passed by this Court on 12.04.2021 in M/s. Fumo Chem Pvt. Ltd. Vs. M/s. Raj Process Equipments and Systems Pvt. Ltd. & Ors. (Transfer Petition(Civil)No.755/2021) and in the light of the decision of this Court in the case of DAV Boys Senior Secondary 3 School & Ors. Vs. Dav College Managing Committee (2010) 8 SCC 401, such transfer should be allowed only if the Court is satisfied that an order of transfer is expedient for the end of justice and mere convenience of the parties may not be enough for the exercise of powers, as it must also be shown that the trial in the chosen forum will result in denial of justice. It was further contended that going by the basic principles and the provisions of law, the respondent having been adversely affected in the running of his business, due to infringement of his trade mark/copyright by the petitioner, at Delhi, vis-a-vis, his customers, has rightly invoked the jurisdiction of the Delhi Court. The counsel further submitted that the advertisement, which the petitioner has got printed, in the newspaper though, at Ratlam but the web copy is available all over and the parties situated in Delhi being specially affected, as the respondent is doing substantive business at Delhi, where his customers are situated, this Court may not allow such prayer.
9. Finally, learned counsel for the respondent submitted that since there is no Court of competent jurisdiction to try the suit at Ratlam, as the jurisdiction of Commercial Court for Ratlam is at Indore, the ground of the proceedings being conducted at Ratlam do not exist and thus, Delhi being better connected and suitable in all aspects, should be accepted by the petitioner also for getting the suit settled. It was submitted that in fact, the petitioner has filed an application under Order VII Rule 10, of the Civil Procedure Code, 1908 and the application filed by the respondent is under Order XXXIX, Rule 2A of the CPC, which are still pending.
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10. Learned counsel for the respondent also took objection to the case being transferred to Indore, as such prayer has not been made in the petition by the petitioner.
11. Having considered the matter in its entirety, the Court would not like to go into the merits of the issues on legalistic basis. On an overall circumspection of the facts and circumstances of the case, we are persuaded to direct for transfer of case. However, without specifying the place, we only direct that the case be transferred to the Commercial Court having jurisdiction over Ratlam to decide the issue.
12. The Transfer Petition stands allowed in the aforementioned terms. However, we make it clear that all pending petitions, in the suit, shall be considered by the transferee Court expeditiously.
13. Pending application(s), if any, shall stand disposed of.
......................J. (AHSANUDDIN AMANULLAH) ......................J. (PRASHANT KUMAR MISHRA) NEW DELHI 27th MARCH, 2025.
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ITEM NO.11 COURT NO.16 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Transfer Petition(s)(Civil) No(s). 59/2025 HEMANT KATARIA & ORS. PETITIONER(S) VERSUS D.P ABHUSHAN LTD RESPONDENT(S) IA No. 64656/2025 - EX-PARTE AD-INTERIM RELIEF Date : 27-03-2025 This matter was called on for hearing today. CORAM : HON'BLE MR. JUSTICE AHSANUDDIN AMANULLAH HON'BLE MR. JUSTICE PRASHANT KUMAR MISHRA For Petitioner(s) Mr. Gagan Bajad, Adv.
Mr. Narayan Tiwari, Adv.
Mr. Aish Goyal, Adv.
Ms. Vanya Gupta, AOR For Respondent(s) Mr. Parag Tripathi, Adv.
Mr. Shailen Bhatia, Adv.
Mr. Devendra Kumar Shukla, AOR Ms. Deeksha Gulati, Adv.
Ms. Sruthi Venugopal, Adv.
Ms. Sheril Bhatia, Adv.
UPON hearing the counsel the Court made the following O R D E R The transfer petition stands allowed in terms of signed order.
Pending application(s), if any, shall stand disposed of.
(VARSHA MENDIRATTA) (ANJALI PANWAR)
COURT MASTER (SH) COURT MASTER (NSH)
(Signed order is placed on the file)